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1960-055-01

United States Supreme Court MICHIGAN NAT. BANK v. MICHIGAN(1961) No. 155 Argued: Decided: March 6, 1961 R. S. 5219 permits States to tax the shares of national banks, but not "at a greater rate than . . . other moneyed capital . . . coming into competition with the business of national banks." Michigan taxes the shareholders of national banks at a higher rate on the value of their shares of stock than it taxes the shareholders of federal and state savings and loan associations on the paid-in value of their shares. Both classes of institutions make residential mortgage loans; but national banks accept deposits which are employed in making loans and which amount to many times the aggregate value of their shares of stock, whereas savings and loan associations accept no deposits and make their loans mainly out of the proceeds of the sale of their shares of stock. Held: Even if savings and loan associations are in competition with national banks, the tax levied on the shareholders of national banks is not so discriminatory in practical effect as to violate R. S. 5219. Pp. 468-483. (a) The restrictions of 5219 on the permitted methods of state taxation of national banks were designed to prohibit only those systems of state taxation which discriminate in practical effect against national banks or their shareholders as a class. Pp. 472-475. (b) Michigan's taxes on the shares of national banks and on savings and loan associations, respectively, do not in practical effect discriminate against national banks or their shareholders as a class. Pp. 475-483. 358 Mich. 611, 101 N. W. 2d 245, affirmed. Victor W. Klein argued the cause for appellants. With him on the brief were Thomas G. Long, Philip T. Van Zile II and Harold A. Ruemenapp. William D. Dexter, Assistant Attorney General of Michigan, argued the cause for appellees. With him on the brief were Paul L. Adams, Attorney General, Samuel J. Torina, Solicitor General, and T. Carl Holbrook, Assistant Attorney General. [365 U.S. 467, 468] MR. JUSTICE CLARK delivered the opinion of the Court. The State of Michigan levies "on the privilege of ownership" a 5 1/2-mill tax per dollar on the value of each common share of stock in national banks 1 located in the State. It requires federal and state savings and loan associations in the State to pay, in addition to other taxes not here involved, for its shareholders an intangibles tax of 2/5 of a mill on each dollar of the paid-in value of their shares. 2 In addition, state associations also pay a franchise tax of 1/4 mill per dollar of their capital and legal reserves. 3 [365 U.S. 467, 469] Appellant Michigan National Bank, with banking offices in eight Michigan cities, brought this suit to recover taxes paid under protest for the year 1952, claiming that the levy under Michigan's Act No. 9 resulted in a tax on national bank shares at least eight times greater than that levied on "other moneyed capital in the hands of individual citizens" in the State, in violation of 5219 of the Revised Statutes of the United States. 4 Initially its attack referred to moneyed capital in the hands of insurance and finance companies, credit unions and individuals, as well as savings and loan associations. Before trial in the Michigan Court of Claims, however, its claim was limited to the latter only, asserting that these institutions were in substantial competition with a phase of the national banking business, i. e., residential mortgage loans, and were preferentially taxed. The resulting tax discrimination, appellant says, renders Act No. 9 invalid [365 U.S. 467, 470] under the controlling decisions of this Court. Michigan's highest court has upheld the statute against this claim. 358 Mich. 611, 101 N. W. 2d 245. We noted probable jurisdiction, 364 U.S. 810 . We have concluded that in practical operation, Michigan's tax structure does not have a discriminatory effect and is, therefore, valid. This determination obviates the necessity of our considering the voluminous and confusing statistics relevant to the issue of whether or not there exists competition between banks and savings and loan associations in the State. The sole authorization upon which Michigan's Act No. 9 may rest is 5219. First Nat. Bank v. Anderson, 269 U.S. 341 (1926); Des Moines Nat. Bank v. Fairweather, 263 U.S. 103 (1923). That authorization is qualified by a proviso that a state tax on national bank shares shall not be "at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks." We have assumed, without deciding, that the national banks located in Michigan and savings and loan associations there are in competition in a substantial phase of the business carried on by national banks, i. e., residential mortgage loans. The sole question here is whether Act No. 9 effects a tax discrimination between national banks and savings and loan associations. BACKGROUND RELATING TO THE PROBLEM. Michigan first authorized the organization of savings and loan associations in 1887. 5 They operate today under the same law as "cooperative" or mutual associations which accumulate capital only through the sale of shares to members, and by retention of a permitted surplus and a reserve from profits. They may make loans only on first mortgage real estate notes and can neither carry on a banking [365 U.S. 467, 471] business nor receive deposits. 6 Their reserves must equal 10% of liabilities to their members and the associations' surplus is limited to 5% of assets. 7 Earnings above the permitted reserves and surplus must be paid to members currently and at stated periods. The Congress authorized the organization of federal savings and loan associations in 1933 in the Home Owners' Loan Act, 48 Stat. 128, as amended, 12 U.S.C. 1461-1468. They operate along the same general lines as state associations. The shares of members in both are insured by the Federal Savings and Loan Insurance Corporation. 8 National banks, of course, engage in the general banking business as authorized by the National Bank Act. 9 Prior to 1916 they were not permitted to make real estate mortgage loans except on certain farm lands. In that year the Congress authorized the banks to make residential loans for a term of not over a year and to the extent of 50% of the value of the mortgaged property. 10 This term was first enlarged in 1927 to five years 11 and then to 10 years in 1935 by 49 Stat. 706, which also authorized an increase to 60% as the maximum proportion of property value permitted to be loaned. In 1934, national banks were authorized to purchase F. H. A. guaranteed mortgages. 12 Ten years later that authority was enlarged to include V. A. loans which the Comptroller of the Currency by decision found to be in the same category as F. H. A. mortgages. 13 It was not until this time that national [365 U.S. 467, 472] banks became any significant factor in the residential mortgage field. By 1952 the ratio of their deposits to their total assets had more than doubled, amounting to 92% of their assets, 14 having totaled only 41% thereof at the time of the passage of 5219. Michigan National was organized in 1941 with 150,000 shares of $10 par value and total resources of about $68,000,000. In 1952 it had outstanding 500,000 shares of the same par value (all of the increase having been issued as dividends) and resources of some $306,000,000. In 1952 its gross earnings on its capital account were 91%, which, after all expenses and taxes (except dividends and federal income tax), remained at over 31%. The 16 building and loan associations' average net earnings for the same year (before dividends and federal income taxes) amounted to 3.4% of their capital, approximately their normal annual earning. A $1,000 investment in Michigan National's stock (58.8 shares) in 1941 was worth $6,691.20 (157.5 shares) by 1952, an annual average increase in value of 61%. This does not include $1,308.80 in cash dividends paid over the same period. BACKGROUND AND CONSTRUCTION OF THE LEGISLATION. 1. Section 5219. Congress enacted the Section in 1864 15 and this Court has passed on it over 55 times in the near century of the Section's existence. During that period the Court has kept clearly in view, as was said in the last case in which [365 U.S. 467, 473] it wrote, that "the various restrictions [ 5219] . . . places on the permitted methods of taxation are designed to prohibit only those systems of state taxation which discriminate in practical operation against national banking associations or their shareholders as a class." Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, 309 U.S. 560, 567 (1940). Reverting to one of the first and controlling cases dealing with the Section, Mercantile Bank v. New York, 121 U.S. 138 (1887), 16 we find that Mr. Justice Matthews declared for a unanimous Court that the purpose of the Congress in passing the provision was "to prohibit the States from imposing such a burden as would prevent the capital of individuals from freely seeking investment in institutions which it was the express object of the law to establish and promote." At p. 154. The Court further held deposits in savings banks to be moneyed capital but approved their total exemption from state taxes, along with other enumerated property, on the ground that the State had shown "just reason" so to do. In essence the case stands for the proposition that the State cannot, by its tax structure, create "an unequal and unfriendly competition" with national banks. This case followed in the light of Hepburn v. School Directors, 23 Wall. 480 (1874), where Chief Justice Waite had pointed out that the taxable value of the stock in a national bank is not necessarily determined by its nominal or par value but rather by "the amount of moneyed capital which the investment represents for the time being." "Therefore some plan must be devised to ascertain what amount of money at interest is actually represented by a share of stock." At p. 484. [365 U.S. 467, 474] The question of tax equivalence thus posed has echoed and re-echoed through the cases. A year subsequent to the decision in Mercantile Bank, supra, the same point was raised in Bank of Redemption v. Boston, 125 U.S. 60 (1888), where the exemption of deposits in savings banks was approved in an opinion which again was written by Mr. Justice Matthews. The Court, in comparing the tax levied on the two institutions, i. e., national banks and savings banks, said: "But shares of the national banks, while they constitute the capital stock of the corporations, do not represent the whole amount of the capital actually employed by them. They have deposits, too, shown in the present record to amount, in Massachusetts, to $132,042,332. The banks are not assessed for taxation on any part of these, although these deposits constitute a large part of the actual capital profitably employed by the banks in the conduct of their banking business. But it is not necessary to establish the exact equality in result of the two modes of taxation." At p. 67. A quarter of a century later, Mr. Justice Pitney in Amoskeag Savings Bank v. Purdy, 231 U.S. 373 (1913), in commenting on the factors to be considered in determining the burden of the tax, said: "There are other considerations to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares - by adopting `book values' [capital, surplus, undivided profits] - which may be more or less favorable than the method adopted in valuing other kinds of personal property." At p. 392. The point was made even more clearly by Mr. Justice Brandeis in First Nat. Bank v. Louisiana Tax Comm'n, 289 U.S. 60 (1933), where he said: "There is a fundamental difference between banks, which make loans mainly from money of depositors, and the other financial institutions, which make loans mainly from the money supplied otherwise than by deposits." [365 U.S. 467, 475] At p. 64. And so, we are taught that in determining the burden of the tax - its discriminatory character - we look to its effect, not its rate. See Amoskeag Savings Bank, supra; Covington v. First Nat. Bank, 198 U.S. 100 (1905), and Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, supra, the last case of this Court on the point. 2. Michigan's Act No. 9. Act No. 9, we have stated, levies a tax of 5 1/2 mills on the book value of each share of stock in national banks, while the separately imposed tax on all savings and loan association shares, exclusive of other taxes, is 2/5 of a mill on the paid-in value of the shares plus, on state associations only, 1/4 of a mill on the value of the paid-in capital and legal reserves. It appears from the record that prior to the enactment of this tax an inequity in the State's tax structure was thought to exist between state and national banks. Upon study of the problem and the recommendation of the Taxation Committee of the Michigan Bankers Association, the State Legislature decided to tax all banks "exactly alike." It embodied the proposal of the Association into Act No. 9. While we have no legislative history in the record before us, according to the amicus curiae brief of the Bankers Association filed in the trial court, the sponsors of Act No. 9 thought it would be "reasonable from the viewpoint of the public, equitable from the viewpoint of the competitors, and practical from the viewpoint of the banks themselves." The opinion of responsible officials of this Association, filed in this case some seven years after Act No. 9 had been in effect and the taxes therein provided paid without protest, save for appellant and four other banks, was: "Actual experience with the taxation system shows that it has produced a reasonable amount of revenue to the State; that it has not created any competitive [365 U.S. 467, 476] disadvantage among the various types of institutions; and that it has proven to be simple to administer." Michigan's Supreme Court has also held that no discrimination in the tax was proven. While the basis of this holding is not too clear, we take it that the finding of total tax equality as between the national banks and the associations, insofar as Act No. 9 was concerned, meant that, in the court's view, the Michigan Legislature, in fixing the rate (5 1/2 mills) on the banks, had either (1) taken into consideration the moneyed capital on hand in each type of institution, i. e., deposits, which were not present as to savings and loan associations, or (2) if such method of valuation of bank stock was not permissible, that the Legislature intended to exempt from taxation any difference between the taxes levied on national banks and savings and loan associations because of the functions of the latter as repositories for the "small savings and accumulations of the industrious and thrifty." Such differences, the Michigan Supreme Court said, were "justified as partial exemptions," under Mercantile Bank, supra, and subsequent cases. While we are not bound by either of these interpretations placed on Act No. 9 by Michigan's highest court, 358 Mich. 611, 639-640, 101 N. W. 2d 245, 259-260, we do accept as controlling its interpretation that, in fixing the rate on national bank shares, the Legislature took into account the moneyed capital controlled thereby. We believe that, granted satisfaction of the other qualifications of 5219, a State's tax system offends only if in practical operation it discriminates against national banks or their shareholders as a class. That is to say, we could not strike down Act No. 9, as interpreted by Michigan's highest court, unless it were manifest that an investment in national bank shares was placed at a disadvantage by the practical operation of the State's law. According to our cases, discussed above, that clearly appears to have [365 U.S. 467, 477] been the purpose of the Congress in enacting 5219. 17 We have made a comprehensive examination of the record and fail to find such a discriminatory effect to be manifest in Michigan's tax system. As has been repeatedly indicated in our decisions, a dollar invested in national bank shares controls many more dollars of moneyed capital, the measuring rod of 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits would indicate. As to all national banks in the United States, the record shows that capital accounts amounting to about $7,000,000,000 control some $100,000,000,000 of deposits (92% of the total assets of all these banks) or an amount 14 times greater. Savings and loan associations have no similar assets of that character, their only source of moneyed capital being the share accounts of members and, at least in the case here, the relatively small amount of retained earnings and surplus permitted under law. Relating the statistics to the immediate problem, the capital, surplus and undivided profits of Michigan National totaled about $13,000,000, to which the 5 1/2-mill tax was applied. The tax amounted to $68,181. The 16 savings and loan associations with which appellant was in [365 U.S. 467, 478] competition had a paid-in share value of $134,000,000, to which was applied the 2/5-mill tax. The resultant tax was about $53,260. Had the same tax rate (2/5-mill) been applied to the moneyed capital, i. e., deposits, of Michigan National ($283,000,000), the product would have more than equaled the tax revenue from the application of the 5 1/2-mill rate against its capital account. In fact, it would have amounted to about $113,000, or 1.7 times the 1952 tax bill on appellant's shares. Similar results could be obtained as to all national banks in Michigan. Their total capital accounts, $166,700,000, when taxed at the 5 1/2-mill rate, yield some $917,000 in taxes. The 2/5-mill rate, if applied to their total deposits, $3,516,000,000, results in $1,406,000 in taxes. This is more than 1.5 times the 1952 taxes assessed under Act No. 9. While it is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods 18 and that they are being taxed at different rates, it does not follow that 5219 is automatically violated. "[I]t is not a valid objection to a tax on national bank shares that other moneyed capital in the state [is] . . . taxed at a different rate or assessed by a [365 U.S. 467, 479] different method unless it appears that the difference in treatment results in fact in a discrimination unfavorable to the holders of the shares of national banks." Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, supra, at 567. Cf. Amoskeag Savings Bank v. Purdy, supra; Covington v. First Nat. Bank, supra. We must remember the interpretation placed on Act No. 9 by Michigan's Supreme Court. It held in effect that the Legislature had taken into account, in fixing the different rates on national bank stock and savings and loan shares, the additional moneyed capital controlled by the former. Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share accounts has no similarly multiplied power, the national bank share would not be "unfavorably" treated unless it was taxed in excess of 21 times the levy on savings and loan share accounts. Cf. Bank of Redemption v. Boston, supra, at 67. Here the ratio is only 13.8 to one, and if the additional franchise tax upon state associations is included, the proportion drops to 8.5 to one. This is not to say that the value of the bank's deposits is a factor in the computation of the tax to be paid under the Michigan statutes. However, the deposits are relevant to the determination of whether or not the tax, as computed under the statutes, is a greater burden than that placed on "other moneyed capital." 19 It is said, however, that this method would be contrary to Minnesota v. First Nat. Bank, 273 U.S. 561 (1927). It was argued in that case that an equivalence of tax [365 U.S. 467, 480] between national banks and other moneyed capital existed because, if the tax rate applicable to other moneyed capital was applied to the assets of the bank without deducting liabilities, the ultimate tax would be approximately the same. However, Mr. Justice (later Chief Justice) Stone, writing for the Court, rejected that argument because it "ignores the fact that the tax authorized by 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities . . . ." At 564. However, that case was decided on the authority of First Nat. Bank v. Hartford, 273 U.S. 548 , which Mr. Justice Stone also wrote and handed down the same day. There the comparison between the widespread capital exempted and that of national banks which was taxed, led to the invalidation of Wisconsin's tax statute. The error the Court found was that Wisconsin "construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks." At 555. While Minnesota's Act, as construed, was not so broad, it taxed capital (including state bank shares) other than that invested in national bank shares at a lower rate. Since both national and state banks were permitted to deduct deposits, it followed that it would have been discriminatory to tax one at a lower rate than the other. However, implicit in the ruling is the proposition that if the same base is employed in the valuation of the shares of the competing institutions, as here, and the practical effect of the different rate does not result in a discrimination against moneyed capital in the hands of national banks, when compared with other competing moneyed capital, it does not violate 5219. "[T]he bank share tax must be compared with . . . the tax on capital invested by individuals in the shares of corporations whose business competes with [365 U.S. 467, 481] that of national banks." Minnesota v. First Nat. Bank, supra, at 564. In short, resulting discrimination in the effect of the tax is the test. Moreover, these cases were both handed down prior to congressional enactment of the Home Owners' Loan Act of 1933, 20 which is "in pari materia" with 5219 and appears "to throw a cross light" [L. Hand in United States v. Aluminium Co. of America, 148 F.2d 416, 429 (C. A. 2d Cir. 1945)] on Michigan's savings and loan tax statute. The 1933 Act, permitting the creation of federal savings and loan associations, contained a provision respecting local taxation which stated in part: ". . . no State . . . shall impose any tax on such [federal] associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions." 48 Stat. 134. Unless Congress had recognized that States taxing national bank shares were free, in spite of 5219, to exempt their own savings and loan associations from local taxation, it would have used language similar or referring to 5219, as it did in other federal statutes creating different types of thrift institutions. 21 To insure that the federal creatures received the same benefits, if any, as state agencies, Congress tied the taxation limitations to state action affecting the latter rather than to 5219. Although the federal statute was enacted prior to Michigan's savings and loan tax statute, its accommodation to such state measures, actual or potential, illustrates the assimilation by Congress of state savings and loan associations to their federal analogues, and not to the very [365 U.S. 467, 482] different national fiscal institutions which national banks are. Furthermore, the power of the State to grant liberal tax treatment to its own associations, viewed even without the light of congressional action, is amply supported by the exemption doctrine of Mercantile Bank, supra, recognized as still vital long after Michigan's law of 1887 under which the savings and loan associations of that State are organized. These considerations weigh heavily in evaluating Michigan's enactment under 5219. Under this standard, Michigan's tax structure does not, in practical effect, result in any discrimination. Its system looks to the moneyed capital controlled by the shareholder. If it is a share in a bank - either federal or state - the legislature considers the deposits available for investment and fixes a rate commensurate with that increased earning and investment power of the shareholder. The resulting tax is not on the assets of the bank, nor on deposits, but on the control the shareholder has in the moneyed capital market. Thus, controlling some 21 times the cash value of his share, a Michigan National shareholder pays the higher rate. On the other hand, a savings and loan shareholder controls no deposits. He has only the cash value of his share (and the comparatively minute reserves allowed by law), insofar as the moneyed capital market is concerned. Consequently he pays the lower rate. As the Michigan Bankers Association has indicated, this approach is realistic from a business standpoint, does not result in discrimination, is economically sound and is fair to each type of taxpayer. If it results, as it did in 1952, in giving Michigan National a tax advantage, it cannot complain. It may be that at some future time, although the statistics indicate it to be improbable, 22 the bank deposits may [365 U.S. 467, 483] fall to such a level that the 5 1/2-mill rate would be violative of 5219. But here we are concerned with only one year, 1952, and for that year the tax levied does not approach the permissible maximum. Such a possibility, however, may account for the action of the Legislature in setting the taxes at the lower than maximum levels now applied. Having assumed the element of competition between Michigan National and the savings and loan associations, a prerequisite to the application of 5219, and in the light of both the clear doctrine of our earlier cases and the phenomenal growth and earning power of appellant despite Act No. 9, we cannot say that its burden in 1952 was so heavy as would "prevent the capital of individuals from freely seeking investment" in its shares. We have considered appellant's other points and have concluded each is without merit. Affirmed. MR. JUSTICE STEWART took no part in the consideration or decision of this case. Footnotes [Footnote 1 Act No. 9 of the Public Acts of Michigan for 1953 (Mich. Comp. Laws, 1948, 1956 Supp., 205.132a) provides in pertinent part: "For the calendar year 1952 . . . and for each year thereafter, or a portion thereof, there is hereby levied upon each resident or non-resident owner of shares of stock of national banking associations located in this state . . . and there shall be collected from each such owner an annual specific tax on the privilege of ownership of each such share of stock, whether or not it is income producing, equal in the case of a share of common stock to 5 1/2 mills upon each dollar of the capital account of such association . . . represented by such share, and equal in the case of a share of preferred stock to 5 1/2 mills upon the par value of such share." [Footnote 2 Mich. Comp. Laws, 1948, 1956 Supp., 205.132, provides in pertinent part: "For the calendar year 1952, and for each year thereafter or portion thereof there is hereby levied upon each resident or non-resident owner of intangible personal property . . . and there shall be collected from such owner an annual specific tax on the privilege of ownership of each item of such property owned by him. . . . [T]he tax on shares of stock in . . . savings and loan associations shall be 1/25 of 1 per cent of the paid-in value of such shares." [Footnote 3 Mich. Comp. Laws, 1948, 450.304a, provides: "Every building and loan association organized or doing business under the laws of this state shall . . ., for the privilege of exercising its franchise and of transacting its business within this state, pay to the secretary of state an annual fee of 1/4 mill upon each dollar of its paid-in capital and legal reserve." The Michigan tax structure was amended, in 1954, to provide that [365 U.S. 467, 469] federal savings and loan associations also pay a privilege tax equal to 1/4 mill on capital and legal reserves. Mich. Comp. Laws, 1948, 1956 Supp., 489.371. [Footnote 4 R. S. 5219, as amended, 12 U.S.C. 548, provides in pertinent part: "The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares . . ., provided the following conditions are complied with; . . . . . "(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section." [Footnote 5 Mich. Pub. Acts 1887, No. 50. [Footnote 6 Mich. Comp. Laws, 1948, 489.37. [Footnote 7 Mich. Comp. Laws, 1948, 489.24. [Footnote 8 48 Stat. 1257, as amended, 12 U.S.C. 1726. [Footnote 9 12 U.S.C. 21-200. [Footnote 10 39 Stat. 754. [Footnote 11 44 Stat. 1232-1233. [Footnote 12 48 Stat. 1263. [Footnote 13 Home Loans Partially Guaranteed Under G. I. Act, Comptroller of the Currency Press Release, Dec. 12, 1944. [Footnote 14 In accounting terminology, bank deposits are liabilities. However, they are a source of assets and for convenience will be referred to as assets hereafter. [Footnote 15 13 Stat. 111. It has been amended four times (15 Stat. 34, R. S. 5219, 42 Stat. 1499, 44 Stat. 223), none of which changes are of any import here. In the 1958 edition of the United States Code it appears as 548 of Title 12. [Footnote 16 Also see an earlier case, often cited, People v. Weaver, 100 U.S. 539 (1879), which held that it was the actual incidence and practical burden of the tax which the Section sought out. This position is treated in detail by Professor Woosley in his work, State Taxation of Banks (1935). [Footnote 17 For a discussion of the effect of the cases, see Powell, Indirect Encroachment on Federal Authority by the Taxing Powers of the States, 31 Harv. L. Rev. 321, 367 (1918). He concludes that the cases lead "to a disregard of formal legal discrimination where there is in fact no substantial economic discrimination." To the same effect, see Woosley, op. cit., supra, note 16, at pp. 24-25. [Footnote 18 The taxable value of a national bank share of common stock under Act No. 9 is determined by dividing the "capital account" (common capital, surplus and undivided profits) by the number of shares of common stock outstanding. A share account in a savings and loan association, on the other hand, is valued according to its "paid-in value." That this latter figure includes neither surplus nor undivided profits is obvious from an inspection of the tax return of a savings and loan institution and its financial statement. For example, the Industrial Savings and Loan Association's intangibles tax return for 1952 shows that its paid-in share value was $5,970,000. The Association's monthly report for December 1952 shows that there were some $283,000 in undivided profits and $202,000 in legal reserves which were not included in the computation of paid-in value for tax purposes. [Footnote 19 It is argued that this disregards the fact that bank deposits are liabilities and must be repaid. This contention is without substance for the savings share accounts must, by law, be purchased by the savings and loan association upon a member's withdrawal. Mich. Comp. Laws, 1948, 489.6. In this respect, therefore, the share accounts and deposits are identical. Both must be repaid. [Footnote 20 48 Stat. 128, as amended, 12 U.S.C. 1461-1468. [Footnote 21 42 Stat. 1469, 12 U.S.C. 1261 (National Agricultural Credit Corporations); 39 Stat. 380, 12 U.S.C. 932 (joint-stock land banks). [Footnote 22 From its organization in 1941 to the end of 1951, Michigan National's total assets grew from $67,600,000 to $272,500,000, an average annual increase of some $20,500,000. By 1957, its assets [365 U.S. 467, 483] totaled $481,000,000, showing an average annual growth of almost $34,800,000 during the years since Act No. 9 was passed. Similarly, deposits increased, on the average, by $18,800,000 each year between 1941 and 1951. Since that time, they have grown at the average rate of $30,700,000 a year. MR. JUSTICE WHITTAKER, with whom MR. JUSTICE DOUGLAS joins, dissenting. I respectfully but resolutely dissent. Exposition of my reasons will require a rather full and careful statement of the facts and the applicable law. A State is without power to tax national bank shares except as Congress consents and then only in conformity with the conditions of such consent. See, e. g., First National Bank v. Anderson, 269 U.S. 341, 347 , and Des Moines National Bank v. Fairweather, 263 U.S. 103, 106 . [365 U.S. 467, 484] By 5219 of the Revised Statutes of the United States (Act of June 3, 1864, c. 106, 13 Stat. 111, as amended by the Act of February 10, 1868, 15 Stat. 34, the Act of March 4, 1923, 42 Stat. 1499, and the Act of March 25, 1926, 44 Stat. 223), Congress has consented that: "The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with: "1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others . . . ." "(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks . . . ." Pursuant to that consent, Michigan passed its Intangibles Tax Act (Act 301, Public Acts of 1939; Mich. Comp. Laws, 1948, 205.132; Mich. Stat. Ann., 1950, 7.556 (2)) imposing, upon the owners, an annual tax (1) of 3% of the income from, but not less than 1/10 of 1% of the face or par value of, national bank shares, and (2) of 4 cents per $100 of the "paid-in value" of savings and loan association shares. By another statute, Michigan imposed, in addition, a privilege tax of 2 1/2 cents per $100 on the value of the capital and legal reserves of state (but not federal) savings and loan associations (Mich. Comp. Laws, 1948, 450.304a; Mich. Stat. Ann. 21.206) - thus [365 U.S. 467, 485] making a total tax of 6 1/2 cents per $100 of the value of state, and 4 cents per $100 of the value of federal, savings and loan shares. In obedience to that Intangibles Tax Act, appellant, Michigan National Bank, having offices and doing business in seven cities in Michigan, 1 paid to the State, on behalf of its shareholders, the taxes thereby imposed on its shares for the year 1952. Thereafter, by Act No. 9 of the Public Acts of Michigan for 1953 ( 205.132a, Mich. Comp. Laws, 1948, 1956 Supp.; Mich. Stat. Ann., 1959 Cum. Supp., 7.556 (2a)), the State amended its Intangibles Tax Act as respects bank shares, but without touching the provisions respecting savings and loan association shares, to provide, in pertinent part, as follows: "For the calendar year 1952 . . . and for each year thereafter, . . . there is hereby levied upon each . . . owner of shares of stock of national banking associations located in this state and banks and trust companies organized under the laws of this state, and there shall be collected from each such owner an annual specific tax . . . equal in the case of a share of common stock to 5 1/2 mills upon each dollar of the capital account of such association, bank or trust company represented by such share, and equal in the case of a share of preferred stock to 5 1/2 mills upon the par value of such share." 2 [365 U.S. 467, 486] Acting under the provisions of the amended statute ("Act 9"), the State imposed an additional tax upon the owners of appellant's "shares" for the year 1952 of $49,929.27. After paying that additional tax under protest, appellant brought this action in the Michigan Court of Claims for its recovery. The ground of its suit was that the State's action in taxing the "shares" of national banks at a rate of 55 cents per $100 of their value, while taxing the "shares" of savings and loan associations at a rate of 6 1/2 cents per $100 of their value, taxed the former "at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks," and therefore violated 5219. After trial, the Michigan Court of Claims held that the assessment and collection of the additional tax did not violate 5219 and entered judgment for the State. On appeal, the Michigan Supreme Court, though conceding that Act 9 placed the shares of "both State and national banks in a special and more heavily taxed category" than the shares of savings and loan associations, held, inter alia, (1) that because savings and loan associations are "different in character, purpose and organization from national banks," operate "in a narrow, restricted field," and are not permitted to receive deposits, they could not, as a matter of law, come "into competition with the business of national banks" within the meaning of 5219, (2) that inasmuch as Michigan lawfully might entirely exempt some entities or activities from taxation without offending 5219, it may prefer the shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks, without thereby violating 5219, and (3) that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered (thus putting out of consideration [365 U.S. 467, 487] the liability of the banks to repay their deposits and other debts), the ratio of the total dollar tax burden to total assets is approximately the same in Michigan - .091 for banks and .089 for savings and loan associations - and this, it said, "establishes that there was practical equality of the total tax imposed upon building and loan associations and upon national banks." It therefore affirmed the judgment, 358 Mich. 611, 101 N. W. 2d 245, and we noted probable jurisdiction of the bank's appeal. 364 U.S. 810 . This Court today substantially adopts the latter conclusion, and on that basis affirms the judgment. In doing so, I must say, with respect, that the Court ignores both the provisions of 5219 and Michigan's mode, plainly expressed in its Act 9, of valuing national bank shares and the shares of savings and loan associations for the purposes of its tax upon them, and effectively defaces and departs from a long line of this Court's decisions, hammered out, case by case, over the course of nearly a century, that are squarely in point and specifically decisive of every question in the case. The admitted difference in the rates of tax - 55 cents per $100 of the value of national bank shares as opposed to 6 1/2 cents per $100 of the value of savings and loan shares - leaves, of course, no doubt that the former are taxed "at a greater rate than" the latter - more than eight times greater. Therefore, the only questions that can possibly be open here under 5219 are (1) whether savings and loan shares are "other moneyed capital in the hands of individual citizens," (2) whether that moneyed capital is "coming into competition with [some substantial phase 3 of] the business of national banks," and [365 U.S. 467, 488] (3) whether it is "substantial in amount when compared with the capitalization of national banks." The latter being an element that this Court has held to be implicit in the statute. First National Bank v. Hartford, 273 U.S. 548, 558 . Surely it cannot now be doubted that shares owned by individual citizens in a savings and loan association, which engages in the business of making residential mortgage loans for profit, are "other moneyed capital in the hands of individual citizens," within the meaning of 5219. This Court has long since settled the question. The term "include[s] shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money." Mercantile Bank v. New York, 121 U.S. 138, 157 . "By its terms the [statute] excludes from moneyed capital only those personal investments which are not in competition with the business of national banks." First National Bank v. Hartford, supra, at 557. See also Minnesota v. First National Bank, 273 U.S. 561, 564 ; First National Bank v. Anderson, supra, at 348, and cases cited. Whether such moneyed capital is being used in "competition with [some substantial phase of] the business of national banks" and is "substantial in amount when compared with the capitalization of national banks" are mixed questions of law and fact, "and in dealing with [them] we may review the facts in order correctly to apply the law." First National Bank v. Hartford, supra, at 552. Here the relevant facts are not in dispute. The uncontroverted evidence shows that, as a part or phase of its general banking business conducted in seven cities in Michigan, appellant is extensively engaged in the business of making residential mortgage loans. In those [365 U.S. 467, 489] cities, there are 16 savings and loan associations which are also extensively engaged in that business. Competition between them and appellant for such loans is keen and continuous. Both appellant and those loan associations extensively advertise for and solicit such loans from all classes and in every economic strata of the people in those communities. They make these loans on the same kinds of residential properties and in the same areas - one type of institution often refinancing and retiring a loan of the other. The rates, terms and conditions of the loans, being competitive, are substantially the same, and in many cases - particularly in the cases of F. H. A. and V. A. loans - they are of precisely the same terms and on exactly the same forms - forms prepared and furnished by the Federal Government. Directed specifically to the question whether moneyed capital of savings and loan associations was being used, in significant amounts, in "competition with [some substantial phase of] the business of national banks" in Michigan, the uncontroverted evidence shows that in the year in question, 1952, the savings and loan associations in Michigan held $433,000,000 of residential mortgage loans, while the national banks in that State held $301,000,000 of such loans - which constituted 30% of their total loans and discounts. In the same year, the 16 savings and loan associations that were most directly competing with appellant made 6,498 residential mortgage loans aggregating about $32,000,000 (of which $6,273,000 were F. H. A. and V. A. and $26,058,000 were conventional loans) which brought their total holdings in such loans to $97,000,000. Whereas, in the same year, appellant made 2,728 residential mortgage loans aggregating about $18,500,000 (of which $10,869,000 were F. H. A., $456,000 were V. A. and $7,245,000 were conventional loans) which brought its total holdings in such loans to $60,000,000. Those loans amounted to 40% of [365 U.S. 467, 490] appellant's total loans and discounts, constituted 20% of its assets and yielded 26% of its income. Upon the question whether the moneyed capital of savings and loan associations that was used in making residential mortgage loans in Michigan was "substantial in amount when compared with the capitalization of national banks" in that State, the uncontroverted evidence shows that in the year in question the savings and loan associations in Michigan held a total of $433,000,000 of such loans, whereas the total capitalization of all national banks in that State was $166,724,000. And the 16 savings and loan associations that were most directly competing with appellant held, in the same period, $97,000,000 of such loans, whereas appellant's capitalization was $13,038,000. Certainly these undisputed facts establish that "moneyed capital" of savings and loan associations was being used in very significant "competition with [a substantial phase of] the business of national banks" in Michigan, and that such competition was "substantial in amount when compared with the capitalization of national banks" in that State. It thus seems altogether clear to me that these uncontroverted facts establish every essential element of appellant's case. It cannot be denied that the plain words of 5219 prohibit the States from taxing the shares of national banks "at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with [some substantial phase 4 of] the business of national banks." Yet, here Michigan taxed national bank shares at a rate of 55 cents per $100 of value, but it taxed savings and loan shares at a rate of only 6 1/2 cents per $100 of value. Did it not plainly thus tax national bank shares "at a greater [365 U.S. 467, 491] rate" than it taxed savings and loan shares? Certainly the latter were "other moneyed capital in the hands of individual citizens of such State." See, e. g., Mercantile Bank v. New York, supra, at 157; First National Bank v. Hartford, supra, at 557. Does not the uncontroverted evidence, which we have summarized in some detail, show that such "other moneyed capital" was used in Michigan in very significant "competition with [a substantial phase of] the business of national banks" and that such competition was "substantial in amount when compared with the capitalization of national banks" in Michigan? Do not these facts establish every element of appellant's case? Respondents do not, nor does the Court, point to any essential element that is missing. Why, then, is appellant not entitled to recover? The only reasons advanced by respondents are those it successfully urged upon the Michigan Supreme Court. Every one of those contentions is opposed to the plain terms of 5219 on the facts of this record, and also has been specifically decided adversely to respondents, on similar facts, by this Court, as I shall show. First. Respondents argue that, because they may not receive "deposits," create "checkbook money" or engage in "banking," but must operate "in a narrow, restricted field," savings and loan associations are so "different in character, purpose and organization from national banks" that - regardless of the actual facts shown in this record - they cannot, as a matter of law, come "into competition with the business of national banks" within the meaning of 5219. This argument, upon analysis, comes down to the contention that the restriction of 5219 was directed only against discrimination in favor of state banks. For they, so the argument runs, are the only state-created institutions that lawfully may engage in "banking business" similarly to national banks and hence, respondents [365 U.S. 467, 492] conclude, only the moneyed capital of state banks can constitute "other moneyed capital . . . coming into competition with the business of national banks," within the meaning of 5219. A similar question arose in First National Bank v. Anderson, 269 U.S. 341 . There "[t]he defendants took the position [in the state court] that the congressional restriction [of 5219] was directed only against discrimination in favor of state banking associations." This Court said the contention was ". . . untenable by reason of settled rulings to the contrary . . . ." Id., at 349. After summarizing its earlier cases, the Court declared that "[t]he purpose of the restriction is to render it impossible for any State, in taxing the shares, to create and foster an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking. Mercantile National Bank v. New York, 121 U.S. 138, 155 ; Des Moines National Bank v. Fairweather, supra [263 U.S. 103], 116." 269 U.S., at 347 -348. (Emphasis added.) And it held that "Moneyed capital is brought into such competition [not only] where it is invested in shares of state banks or in private banking . . . [but] also where it is employed, substantially as in the loan and investment features of banking, in making investments, by way of loan, discount or otherwise, in notes, bonds or other securities with a view to sale or repayment and reinvestment. Mercantile National Bank v. New York, supra, 155-157; Palmer v. McMahon, 133 U.S. 660, 667 -668; Talbot v. Silver Bow County, 139 U.S. 438, 447 ." 269 U.S., at 348 . (Emphasis added.) Respondents' contention that "other moneyed capital" does not come into competition with the business of [365 U.S. 467, 493] national banks unless it is employed in a business substantially identical with all phases of the business carried on by national banks was squarely met and rejected by this Court, in words about as plain as it is possible to conceive, in First National Bank v. Hartford, supra. There, the Wisconsin Supreme Court "apparently construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks. Consequently, since that class of business must under the Wisconsin statutes be carried on in corporate form and capital invested in it is taxed at the same rate as national bank shares, other moneyed capital, as defined in 5219, within the state, it thought, was not favored." 273 U.S., at 555 -556. That view, if logically pursued, would mean that "other moneyed capital" invested in businesses engaged in some but not all of the activities of national banks could not be considered in determining the question of competition. In rejecting that contention, this Court said: "But this Court has recently had occasion, in reviewing the earlier decisions dealing with this subject, to point out that the requirement of approximate equality in taxation is not limited to investment of moneyed capital in shares of state banks or to competing capital employed in private banking. The restriction applies as well where the competition exists only with respect to particular features of the business of national banks or where moneyed capital `is employed, substantially as in the loan and investment features of banking, in making investments by way of loan, discount or otherwise, in notes, bonds or other securities, with a view to sale or repayment and reinvestment.' First National Bank v. Anderson, supra, 348. In so doing, it followed the [365 U.S. 467, 494] holding in Mercantile Bank v. New York, 121 U.S. 138, 157 . . . ." 273 U.S., at 556 . (Emphasis added.) The Court then proceeded to declare the law in such clear and ringing terms as have settled the question for the intervening 34 years - from 1927 until today. It said: "Competition may exist between other moneyed capital and capital invested in national banks, serious in character and therefore well within the purpose of 5219, even though the competition be with some but not all phases of the business of national banks. Section 5219 is not directed merely at discriminatory taxation which favors a competing banking business. Competition in the sense intended arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command. No decision of this Court appears to have so qualified 5219 as to permit discrimination in taxation in favor of moneyed capital such as is here contended for. To so restrict the meaning and application of 5219 would defeat its purpose. It was intended to prevent the fostering of unequal competition with the business of national banks by the aid of discriminatory taxation in favor of capital invested by institutions or individuals engaged either in similar businesses or in particular operations or investments like those of national banks. . . . Our conclusion is that 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business." 273 U.S., at 557 -558. (Emphasis added.) [365 U.S. 467, 495] Identical conclusions were again announced by the Court on the same day in Minnesota v. First National Bank, 273 U.S. 561 . 5 Here, there is no question about the fact that the making of residential mortgage loans was a substantial phase of the business of national banks in Michigan. Such loans amounted to $301,000,000 and constituted 30% of their total loans and discounts. Nor can there be any question about the fact that moneyed capital of savings and loan associations was being used in significant competition with the residential mortgage loan phase of the business of national banks in Michigan. Those loan associations held $433,000,000 of such loans. That amount was certainly substantial "when compared with the capitalization of national banks" in Michigan of $166,724,000. These facts, under the rule of the Hartford and Minnesota cases, would seem to leave no doubt that appellant's shares were discriminatorily taxed in violation of 5219. Second. Respondents argue that savings and loan associations are similar in character and purpose to the, now largely historical, small mutual savings banks that were common in the last century. On that assumption, they argue that inasmuch as this Court has held that taxation of national bank shares at a greater rate than was assessed against such mutual savings banks did not offend 5219 [365 U.S. 467, 496] (see, e. g., Mercantile Bank v. New York, 121 U.S. 138 (1887); Davenport Bank v. Davenport Board of Equalization, 123 U.S. 83 (1887); Bank of Redemption v. Boston, 125 U.S. 60 (1888); Aberdeen Bank v. Chehalis County, 166 U.S. 440 (1897), it should follow that the taxation of national bank shares at a greater rate than savings and loan shares does not offend the statute. That argument, too, was specifically answered by the Hartford case. With unmistakable reference to those cases, the Court said: "Some of the cases dealing with the technical significance of the term competition in this field were decided before national banks were permitted to invest in mortgages as they are now. Act of December 23, 1913, c. 6, 24, 38 Stat. 251, 273; Act of September 7, 1916, c. 461, 39 Stat. 752, 754; Act of February 25, 1927, 24. 6 And others go no further than to hold that in the [365 U.S. 467, 497] absence of allegation and proof of competition with national banking capital, it cannot be said that an offending discrimination exists." 273 U.S., at 558 . Then, squarely rejecting the theory of respondents' argument, the Court said: "With the great increase in investments by individuals and the growth of concerns engaged in particular phases of banking shown by the evidence in this case and in Minnesota v. First National Bank of St. Paul, today decided, post, p. 561, discrimination with respect to capital thus used could readily be carried to a point where the business of national banks would be seriously curtailed. Our conclusion is that 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business." 273 U.S., at 558 . Surely nothing more need be said. Third. Respondents argue that inasmuch as this Court has held that a State may entirely exempt some entities or activities from taxation - i. e., churches, charities, small mutual savings banks, municipal bonds, and the like - without offending 5219 (see, e. g., Hepburn v. School Directors, 23 Wall. 480; Adams v. Nashville, 95 U.S. 19 ; Mercantile Bank v. New York, supra; Davenport Bank v. Davenport Board of Equalization, supra; Bank of Redemption v. Boston, supra; Aberdeen Bank v. Chehalis County, supra), it follows that a State may prefer the [365 U.S. 467, 498] shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks - even though the former are used in significant competition with a substantial phase of the business of the latter - without thereby violating 5219. Despite the strongest of implications to the contrary, we have no occasion here to consider whether the State might, under conditions shown by this record, entirely exempt the shares of savings and loan associations from taxation, while taxing the shares of national banks, for it has not done so. The State taxes savings and loan shares, although at only about 1/8 of the rate it levies on national bank shares. In these circumstances, respondents' argument runs in the very teeth of this Court's holding in the Hartford case that "Competition in the sense intended [by 5219] arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command" ( 273 U.S., at 557 ), and "that 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business." 273 U.S., at 558 . A more direct and conclusive answer cannot readily be perceived. Fourth. Respondents argue, and the Court agrees, that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered, the ratio of the total dollar tax burden to total assets is approximately the same in Michigan - .091 for banks and .089 for savings and loan associations - and therefore national bank shares are not really taxed at a greater rate than savings and loan shares. [365 U.S. 467, 499] This brings us to the heart of our disagreement with the Court. After correctly observing that "There are other considerations [than rates] to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares - by adopting `book values' [capital, surplus and undivided profits] - which may be more or less favorable than the method adopted in valuing other kinds of personal property," Amoskeag Savings Bank v. Purdy, 231 U.S. 373, 392 ; see also Hepburn v. School Directors, 23 Wall. 480, 484; Tradesmens National Bank v. Oklahoma Tax Comm'n, 309 U.S. 560, 567 , and that it is not the rate alone but the practical effect of the tax that determines whether there is discrimination, the Court says: "[I]t is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods . . . ." This conclusion is demonstrably wrong. In plain and simple terms Act 9 provides that the value of bank shares "shall be determined by dividing such capital account [capital, surplus and undivided profits] by the number of shares of such common stock . . . ." (see note 2), and the shares of savings and loan associations are valued at the "paid-in value." In each case, therefore, corporate liabilities are deducted and the tax is imposed upon the book value of the shares. Hence, it could hardly be plainer "that the taxable value of the shares in these two types of financial institutions is determined by" exactly the same, not "different," methods. One cannot profitably elaborate a truth so simple. Then, the Court comes to the real basis of its decision. It says "[Michigan's] system looks to the moneyed capital controlled by the shareholder. If it is a share in a bank - either federal or state - the legislature considers the deposits available for investment and fixes a rate commensurate with that increased earning and investment power of the shareholder"; that "a dollar invested in [365 U.S. 467, 500] national bank shares controls many more dollars of moneyed capital, the measuring rod of 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits"; that "Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share[s] . . . has no similarly multiplied power, the national bank share would not be `unfavorably' treated unless it was taxed in excess of 21 times the levy on savings and loan share[s] . . . . Here the ratio is only 13.8 to one . . . ." (Emphasis added.) I respectfully submit that this is an egregious error. Nothing in the Michigan statute provides or contemplates that the amount of capital "controlled" by the shares of a national bank, or the amount of the bank's "deposits," is a relevant factor in determining the value of bank shares for the purposes of this tax. Nor are "increased [values] to the shareholder," by reason of capital "controlled" by the bank or its "deposits," made relevant factors. Quite specifically to the contrary, Act 9 provides that "`Capital account' as referred to herein shall be determined by adding the common capital, surplus and undivided profits accounts . . ., and the dollar amount of the capital account represented by each share of its common stock shall be determined by dividing such capital account by the number of shares of such common stock . . . ." How could it more plainly be said that bank shares must be valued, for the purposes of this tax, solely upon their book value - without regard to [365 U.S. 467, 501] the bank's "deposits" or to the capital "controlled by the shareholder"? It is surely clear that the Michigan tax is not imposed upon national banks or upon their assets; instead, it is imposed upon the owners of the bank's shares, measured solely by the value of those shares - "determined by dividing [the] capital account by the number of shares of such common stock." See note 2. Respondents' argument, and the Court's decision, put out of consideration the liability of national banks to repay their deposits and other debts, and would impose the tax on their gross assets, in direct opposition to the plain terms of the Michigan statute. Precisely the same argument was rejected by this Court in Minnesota v. First National Bank, supra: "Petitioner argues that in its actual operation, the tax on national bank shares is no greater than the tax on credits, since under the statute individuals are taxed at the rate of three mills upon the full value of their credits without deducting their liabilities, whereas in taxing bank shares, the liabilities of the banks are deducted from their assets in ascertaining the forty per cent. valuation of their shares. Therefore, it is urged, if bank shares were taxed at the same rate without deducting the bank's liabilities in ascertaining the value of their shares, the amount of the tax would be approximately the same. This argument ignores the fact that the tax authorized by 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities, Des Moines National Bank v. Fairweather, 263 U.S. 103 . . . ." 273 U.S., at 564 . It would indeed be novel, even in the absence of the contrary provisions of Act 9, to add liabilities to assets in determining book value of corporate shares - a simple contradiction in terms. It is likewise idle to observe the [365 U.S. 467, 502] obvious fact that savings and loan associations have no "deposits," and hence no deposit liabilities to deduct, 7 or to argue that they, in valuing their shares for the purposes of this tax, should be allowed to deduct the amounts paid in by their "shareholders" for their "shares," as the resulting figure would be zero, and the effect would be to tax those shares only in fiction. Nothing in either Act 9 or in 5219 authorizes such double talk. Here, Michigan values national bank shares and savings and loan association shares, for the purposes of this tax, by exactly the same method, i. e., the value of the shares. Yet it taxes bank shares at a rate of 55 cents per $100 of their value, while taxing savings and loan shares at 6 1/2 cents per $100 of their value. Does not that conduct violate the provision of 5219 that national bank shares "shall not be [taxed] at a greater rate than is assessed upon other moneyed capital . . . coming into competition with the business of national banks"? If the Court's argument, that a tax upon the bank's "deposits" at the rate applied to the shares of savings and loan associations would produce a greater tax than results from application of the higher bank share rate to the value of its shares, has any relevance to any issue in this case, it can only be to demonstrate that including "deposits" in the valuation of bank shares would be to tax not just the bank's "shares," as authorized by 5219, but both the "shares" and the "deposits" of the bank, and not at the lower rate applicable to savings and loan shares but at the eight times higher one applicable to the shares of national banks. Similarly, the Court's argument that [365 U.S. 467, 503] appellant, despite this tax discrimination, has phenomenally prospered seems wholly irrelevant, for the criterion of 5219 is not whether national banks may prosper, despite state tax discrimination, but is rather that their share "shall not be [taxed] at a greater rate than is assessed upon other moneyed capital . . . coming into competition with the business of national banks." But, if the Court's argument has any relevance, it should be observed that Michigan national banks have not increased assets proportionately to savings and loan associations in that State since the passage of Act 9 in 1953, for the amount of residential mortgage loans then held by such associations in that State of $433,000,000 has now grown to $1,700,000,000. Finally, respondents argue that Congress, in restricting state taxation of federal savings and loan associations to a rate not "greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions," 12 U.S.C. 1464 (h), evidenced its understanding and intention that savings and loan shares might be taxed at a lower rate than the shares of national banks, and thus impliedly repealed or modified 5219 so far as competition with the business of national banks from that source is concerned. There is no basis for an assumption that Congress, in so restricting state taxation of federal savings and loan associations, intended, so lightly and collaterally, to repeal or modify 5219 by implication. It is obvious that, by 1464 (h), Congress only restricted state taxation of federal savings and loan associations to a rate not greater than that assessed by the State against similar state associations. Therefore, if, as seems entirely clear from 5219 and our cases, a State may not tax national bank shares at a greater rate than it taxes state savings and loan association shares, when the latter are used in significant competition with a substantial phase of the former's business, [365 U.S. 467, 504] it accordingly may not tax national bank shares at a greater rate than it taxes the shares of federal savings and loan associations which are similarly competing with a substantial phase of the business of national banks. For it may not, in such circumstances, lawfully prefer either over national bank shares with which they so compete. In other words, by 1464 (h), Congress restricted the States from taxing federal savings and loan associations at a greater rate than state savings and loan associations, and by 5219 it restricted the States from taxing national bank shares at a greater rate than they assess "upon other moneyed capital . . . coming into competition with the business of national banks." Hence, if a State taxes national bank shares at a greater rate than it assesses against the "moneyed capital" of savings and loan associations - state or federal - which is used in significant competition with a substantial phase of the business of such banks, it violates 5219. That is exactly what Michigan has done here. The proper interpretation and application of 5219 to particular fact situations has been hammered out by the decisions of this Court, case by case, over the course of nearly a century. They have squarely met and decided, adversely to respondents, every question in this case. Finally, the Hartford and Minnesota cases brought a settled peace to this field that has endured until today - for 34 years. The obvious reason, I submit, is that they are right. There is, I respectfully submit, no call or reason to depart or deface those cases. And doing either will only again unsettle the law in a field where certainty of the applicable rules is nearly as important as their substance. Under the law, settled for at least the last 34 years, appellant has proved every element of its case, and is entitled to recover. I would therefore reverse the judgment. [Footnote 1 Appellant's main bank is located in the City of Lansing. It maintains branch banks in the Cities of Battle Creek, Flint, Grand Rapids, Marshall, Port Huron and Saginaw. [Footnote 2 Act 9 contains a further relevant provision which, in pertinent part, reads: "`Capital account' as referred to herein shall be determined by adding the common capital, surplus and undivided profits accounts . . ., and the dollar amount of the capital account represented by each share of its common stock shall be determined by dividing such capital account by the number of shares of such common stock . . . ." [Footnote 3 In First National Bank v. Hartford, 273 U.S. 548, 556 , 557, this Court held the phrase "some substantial phase," in the context here used, to be implicit in 5219. [Footnote 4 See note 3. [Footnote 5 Since this Court's decisions in First National Bank v. Hartford, supra, and Minnesota v. First National Bank, supra, in 1927, several proposals to limit state taxes on national bank shares to such as are imposed by the State on state banks - thus permitting other competing moneyed capital, including that of savings and loan associations, to be taxed at a lower rate by the State - have been made to and rejected by Congress. Hearings before the Senate Banking and Currency Committee on S. 1573, 70th Cong., 1st Sess. (1928); Hearings on H. R. 8727 before the House Committee on Banking and Currency, 70th Cong., 1st Sess. (1928); S. 3009, 73d Cong., 2d Sess.; H. R. 9045, 73d Cong., 2d Sess. [Footnote 6 A historical review of 24, Federal Reserve Act (12 U.S.C. 371), which prescribed the authority of national banks to make real estate mortgage loans, reveals that, prior to 1916, national banks were not authorized to loan money on the security of real estate, with the exception of certain farm land. By the Act of September 7, 1916 (39 Stat. 754), Congress first authorized national banks to make residential mortgage loans, but limited them to an amount not exceeding 50% of the actual value of the property and to run for a term not longer than one year. By the Act of February 25, 1927 (44 Stat. 1232), Congress authorized such residential mortgage loans to run for a period of five years. By the Act of June 27, 1934 (48 Stat. 1263), Congress authorized national banks to make mortgage loans under Title II, National Housing Act (12 U.S.C. 1701 et seq.), commonly known as F. H. A. mortgages. By the Act of August 23, 1935 (49 Stat. 706), amending 24 of the Federal Reserve Act, national banks were authorized to make conventional residential mortgage loans in amounts not exceeding 60% of the appraised value of the property for a term of 10 years if 40% of the principal be amortized in that term. By decision of the Comptroller of the Currency in 1944, national banks were authorized to participate in the V. A. (or G. I.) home loan program. By the 1950 Amendment to 24 (64 Stat. 80), national banks were authorized to make Title I, F. H. A. home [365 U.S. 467, 497] improvements loans. It thus appears that, by 1952, national banks were authorized to make F. H. A. mortgage and home modernization loans and also V. A. mortgage loans identical to those made by savings and loan associations, and conventional mortgage loans comparable to those made by such associations. [Footnote 7 The Michigan Supreme Court itself has recognized "that investors in savings and loan associations are subscribers to, or purchasers of stock therein. . . ." - and are not "depositors" or "creditors" thereof. Michigan Savings & Loan League v. Municipal Finance Commission of the State of Michigan (1956), 347 Mich. 311, 322, 79 N. W. 2d 590, 595. [365 U.S. 467, 505]

conservative

public_entity

federalism

1977-013-01

United States Supreme Court NEW YORK v. CATHEDRAL ACADEMY(1977) No. 76-616 Argued: October 3, 1977Decided: December 6, 1977 A three-judge District Court issued a judgment (later affirmed by this Court) declaring unconstitutional a New York statute (1970 N. Y. Laws, ch. 138) that authorized reimbursement to nonpublic schools for state-mandated recordkeeping and testing services, and permanently enjoining any payments under the Act, including reimbursement for expenses that such schools had already incurred in the last half of the 1971-1972 school year. Thereafter the New York State Legislature enacted 1972 N. Y. Laws, ch. 996, authorizing reimbursement to sectarian schools for their expenses of performing the state-required services through the 1971-1972 school year. Appellee sectarian school brought this reimbursement action under ch. 996 in the New York Court of Claims, which held that the statute violated the First and Fourteenth Amendments. The New York Court of Appeals, being of the view that ch. 996 comported with this Court's decision in Lemon v. Kurtzman, 411 U.S. 192 (Lemon II), ultimately reversed, and remanded the case for a determination of the amount of appellee's claim. In that case, after a state statute authorizing payments to sectarian schools for specified secular services had been struck down (in Lemon v. Kurtzman, 403 U.S. 602 (Lemon I)) and the trial court on remand had enjoined payments under the statute for any services performed after that decision but had not prohibited payments for services provided before that date, the Court approved such disposition on the ground that equitable flexibility permitted weighing the "remote possibility of constitutional harm from allowing the State to keep its bargain" against the substantial reliance of the schools that had incurred expenses at the State's express invitation. Held: 1. This Court has jurisdiction of this appeal as the Court of Appeals' decision was a final determination of the federal constitutional issue and is ripe for appellate review under 28 U.S.C. 1257 (2). P. 128. 2. Chapter 996 violates the First Amendment as made applicable to the States by the Fourteenth because it will necessarily have the primary effect of aiding religion, or will result in excessive state involvement in religious affairs. Lemon II distinguished. Pp. 128-133. (a) Here (contrary to the situation in Lemon II) the District Court had expressly enjoined payments for amounts "heretofore or hereafter expended." To approve enactment of ch. 996, which thus [434 U.S. 125, 126] was inconsistent with the District Court's order, would expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court's injunction whenever a balancing of constitutional equities might conceivably have justified the court's granting similar relief in the first place. Pp. 128-130. (b) If ch. 996 authorizes payments for the identical services that were to be reimbursed under ch. 138, it is for the identical reasons invalid. Pp. 130-131. (c) Even if, as appellee contends, the Court of Claims was authorized to make an audit on the basis of which it would authorize reimbursement of sectarian schools only for clearly secular purposes, such a detailed inquiry would itself encroach upon the First and Fourteenth Amendments by making that court the arbiter of an essentially religious dispute. Pp. 131-133. 3. Contrary to Lemon II, the equities do not support what the state legislature has done in ch. 996, which constitutes a new and independently significant infringement of the First and Fourteenth Amendments. Moreover, appellee could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sectarian, activities that it might otherwise not have been able to afford. Pp. 133-134. 39 N. Y. 2d 1021, 355 N. E. 2d 300, reversed and remanded. STEWART, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. BURGER, C. J., and REHNQUIST, J., filed a dissenting statement, post, p. 134. WHITE, J., filed a dissenting opinion, post, p. 134. Jean M. Coon, Assistant Solicitor General of New York, argued the cause for appellant. With her on the brief were Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Kenneth Connolly, Assistant Attorney General. Richard E. Nolan argued the cause for appellee. With him on the brief was Thomas J. Aquilino, Jr. MR. JUSTICE STEWART delivered the opinion of the Court. In April of 1972 a three-judge United States District Court for the Southern District of New York declared unconstitutional New York's Mandated Services Act, 1970 N. Y. Laws, [434 U.S. 125, 127] ch. 138, which authorized fixed payments to nonpublic schools as reimbursement for the cost of certain recordkeeping and testing services required by state law. Committee for Public Education & Religious Liberty v. Levitt, 342 F. Supp. 439. The court's order permanently enjoined any payments under the Act, including reimbursement for expenses that schools had already incurred in the last half of the 1971-1972 school year. 1 This Court subsequently affirmed that judgment. Levitt v. Committee for Public Education, 413 U.S. 472 . In June 1972 the New York State Legislature responded to the District Court's order by enacting ch. 996 of the 1972 N. Y. Laws. The Act "recognize[d] a moral obligation to provide a remedy whereby . . . schools may recover the complete amount of expenses incurred by them prior to June thirteenth[, 1972,] in reliance on" the invalidated ch. 138, and conferred jurisdiction on the New York Court of Claims "to hear, audit and determine" the claims of nonprofit private schools for such expenses. Thus the Act explicitly authorized what the District Court's injunction had prohibited: reimbursement to sectarian schools for their expenses of performing state-mandated services through the 1971-1972 academic year. The appellee, Cathedral Academy, sued under ch. 996 in the Court of Claims, and the State defended on the ground that the Act was unconstitutional. 2 The Court of Claims agreed that ch. 996 violated the First and Fourteenth Amendments, and dismissed Cathedral Academy's suit. 77 Misc. 2d 977, [434 U.S. 125, 128] 354 N. Y. S. 2d 370. The Appellate Division affirmed, 47 App. Div. 2d 390, 366 N. Y. S. 2d 900, but the New York Court of Appeals, adopting a dissenting opinion in the Appellate Division, reversed and remanded the case to the Court of Claims for determination of the amount of the Academy's claim. 3 39 N. Y. 2d 1021, 355 N. E. 2d 300. An appeal was taken to this Court, and we postponed further consideration of the question of our appellate jurisdiction until the hearing on the merits. 429 U.S. 1089 . We conclude that the Court of Appeals' decision finally determined the federal constitutional issue and is ripe for appellate review in this Court under 28 U.S.C. 1257 (2). 4 I The state courts and the parties have all considered this case to be controlled by the principles established in Lemon v. Kurtzman, 411 U.S. 192 (Lemon II), which concerned the permissible scope of a Federal District Court's injunction forbidding payments to sectarian schools under an unconstitutional state statute. Previously in that same litigation we had [434 U.S. 125, 129] declared unconstitutional a Pennsylvania statute authorizing payments to sectarian schools for specific secular services provided under contract with the State, and remanded the case to the trial court for entry of an appropriate decree. Lemon v. Kurtzman, 403 U.S. 602 (Lemon I). On remand, the District Court enjoined payments under the statute for any services performed after the date of this Court's decision, but did not prohibit payments for services provided before that date. 348 F. Supp. 300, 301 n. 1 (ED Pa.). In Lemon II this Court affirmed the trial court's denial of retroactive injunctive relief against the State, noting that "in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable." 411 U.S., at 200 (footnote omitted). The primary constitutional evil that the Lemon II injunction was intended to rectify was the excessive governmental entanglement inherent in Pennsylvania's elaborate procedures for ensuring that "educational services to be reimbursed by the State were kept free of religious influences." Id., at 202. The payments themselves were assumed to be constitutionally permissible, since they were not to be directly supportive of any sectarian activities. Because the State's supervision had long since been completed with respect to expenses already incurred, the proposed payments were held to pose no continued threat of excessive entanglement. Two other problems having "constitutional overtones" - the impact of a final audit and the effect of funding even the entirely nonreligious activities of a sectarian school - threatened minimal harm "only once under special circumstances that will not recur." Ibid. In this context this Court held that the unique flexibility of equity permitted the trial court to weigh the "remote possibility of constitutional harm from allowing the State to keep its bargain" against the substantial reliance of the schools that had incurred expenses at the express invitation of the State. The District Court, "applying familiar equitable principles," could properly decline to enter an injunction that [434 U.S. 125, 130] would do little if anything to advance constitutional interests while working considerable hardship on the schools. Cf. Hecht Co. v. Bowles, 321 U.S. 321 . In the present case, however, the District Court did not limit its decree as the court had done in Lemon II, but instead expressly enjoined payments for amounts "heretofore or hereafter expended." See n. 1, supra (emphasis supplied). The state legislature thus took action inconsistent with the court's order when it passed ch. 996 upon its own determination that, because schools like the Academy had relied to their detriment on the State's promise of payment under ch. 138, the equities of the case demanded retroactive reimbursement. To approve the enactment of ch. 996 would thus expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court's injunction whenever a balancing of constitutional equities might conceivably have justified the court's granting similar relief in the first place. But cf. Wright v. Council of City of Emporia, 407 U.S. 451, 467 . This rule would mean that every such unconstitutional statute, like every dog, gets one bite, if anyone has relied on the statute to his detriment. Nothing in Lemon II, whose concern was to "examine the District Court's evaluation of the proper means of implementing an equitable decree," 411 U.S., at 200 , suggests such a broad general principle. But whether ch. 996 is viewed as an attempt at legislative equity or simply as a law authorizing payments from public funds to sectarian schools, the dispositive question is whether the payments it authorizes offend the First and Fourteenth Amendments. II The law at issue here, ch. 996, authorizes reimbursement for expenses incurred by the schools during the specified time period "in rendering services for examination and inspection in connection with administration, grading and the compiling [434 U.S. 125, 131] and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports required by law or regulation." It expressly states that the basis for the legislation is the State's representation in the now invalidated ch. 138 that such expenses would be reimbursed. Thus, while ch. 996 provides for only one payment rather than many, and changes the method of administering the payments, nothing on the face of the statute indicates that payments under ch. 996 would differ in any substantial way from those authorized under ch. 138. Unlike the constitutional defect in the state law before us in Lemon I, the constitutional invalidity of ch. 138 lay in the payment itself, rather than in the process of its administration. The New York statute was held to be constitutionally invalid because "the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities." Levitt v. Committee for Public Education, 413 U.S., at 480 . This was so both because there was no assurance that the lump-sum payments reflected actual expenditures for mandated services, and because there was an impermissible risk of religious indoctrination inherent in some of the required services themselves. We noted in particular the "substantial risk that . . . examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church." Ibid. Thus it can hardly be doubted that if ch. 996 authorizes payments for the identical services that were to be reimbursed under ch. 138, it is for the identical reasons invalid. The Academy argues, however, that the Court of Appeals has construed the statute to require a detailed audit in the Court of Claims to "establish whether or not the amounts [434 U.S. 125, 132] claimed for mandated services constitute a furtherance of the religious purposes of the claimant." 47 App. Div. 2d, at 397, 366 N. Y. S. 2d, at 906. This language is said to require the Court of Claims to review in detail all expenditures for which reimbursement is claimed, including all teacher-prepared tests, in order to assure that state funds are not given for sectarian activities. We find nothing in the opinions of the state courts to indicate that such an audit is authorized under ch. 996. 5 But even if such an audit were contemplated, we agree with the appellant that this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments. In order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove [434 U.S. 125, 133] any religious content in various classroom materials. In order to fulfill its duty to resist any possibly unconstitutional payment, see n. 2, supra, the State as defendant would have to undertake a search for religious meaning in every classroom examination offered in support of a claim. And to decide the case, the Court of Claims would be cast in the role of arbiter of the essentially religious dispute. The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment, and it cannot be dismissed by saying it will happen only once. Cf. Presbyterian Church v. Blue Hull Mem. Presb. Church, 393 U.S. 440 . When it is considered that ch. 996 contemplates claims by approximately 2,000 schools in amounts totaling over $11 million, the constitutional violation is clear. 6 For the reasons stated, we hold that ch. 996 is unconstitutional because it will of necessity either have the primary effect of aiding religion, see Levitt v. Committee for Public Education, supra, or will result in excessive state involvement in religious affairs. See Lemon I, 403 U.S. 602 . III But even assuming, as the New York Court of Appeals did, that under Lemon II a degree of constitutional infirmity may be tolerated in a state law if other equitable considerations predominate, we cannot agree that the equities support what the state legislature has done in ch. 996. In Lemon II the constitutional vice of excessive entanglement was an accomplished fact that could not be undone by enjoining payments for expenses previously incurred. And [434 U.S. 125, 134] precisely because past practices had clearly identified permissibly reimbursable secular expenses, an additional single payment was held not to threaten the additional constitutional harm of state support to religious activities. By contrast, ch. 996 amounts to a new and independently significant infringement of the First and Fourteenth Amendments. Moreover the Academy's detrimental reliance on the promise of ch. 138 was materially different from the reliance of the schools in Lemon II. Unlike the Pennsylvania schools, the Academy was required by pre-existing state law to perform the services reimbursed under ch. 138. In essence, the Academy could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sectarian, activities that it might not otherwise have been able to afford. While this Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions, see Roemer v. Maryland Public Works Board, 426 U.S. 736, 747 , and n. 14 (plurality opinion), it is quite another matter to accord positive weight to such a reliance interest in the balance against a measurable constitutional violation. Accordingly, the judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST believe that this case is controlled by the principles established in Lemon v. Kurtzman, 411 U.S. 192 (1973), and would therefore affirm the judgment of the Court of Appeals of New York. Footnotes [Footnote 1 The order permanently enjoined "all persons acting for or on behalf of the State of New York . . . from making any payments or disbursements out of State funds pursuant to the provisions of Chapter 138 of the New York Laws of 1970, in payment for or reimbursement of any moneys heretofore or hereafter expended by nonpublic elementary and secondary schools." No. 70 Civ. 3251 (June 1, 1972). [Footnote 2 At oral argument the Assistant Solicitor General of New York said that the State of New York frequently defends against claims for payment on the ground that the enabling Act authorizing suit in the Court of Claims is unconstitutional. [Footnote 3 The dissenting judges in the Court of Appeals voted to affirm on the majority opinion in the Appellate Division. 39 N. Y. 2d, at 1022, 355 N. E. 2d 300. We shall refer to the dissenting opinion of Justice Herlihy in the Appellate Division, 47 App. Div. 2d 396, 366 N. Y. S. 2d 905, adopted by the majority in the Court of Appeals, as the opinion of the Court of Appeals. [Footnote 4 It is clear that the New York Court of Appeals has finally determined that under the principles established in Lemon v. Kurtzman, 411 U.S. 192 (Lemon II), the Academy and other schools in similar positions are entitled to prove claims for reimbursement under ch. 996. While the Court of Appeals remanded for an audit in the Court of Claims to determine the amount of the Academy's claim, and while the precise scope of the audit is unclear, we conclude for the reasons stated in Part II of the text below that no possible developments on remand could sufficiently minimize the risk of future constitutional harm to justify relief even under Lemon II's balancing of constitutional and equitable considerations. Since further proceedings cannot remove or otherwise affect this threshold federal issue, the Court of Appeals' decision is final for purposes of review in this Court. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 478 -480. [Footnote 5 The Court of Claims dismissed the Academy's claim in part because it found no "enforceable standards or guidelines" in ch. 996 "which would enable this Court to separate and apportion the single per-pupil allotment among the various allowed purposes." 77 Misc. 2d, at 985, 354 N. Y. S. 2d, at 378. Thus it did not believe that ch. 996 authorized it to reimburse schools only for clearly secular expenses, such as the cost of maintaining attendance and medical records, while refusing payments for other "allowed purposes" such as in-class examinations that this Court had held impermissible. The opinion of the Court of Appeals does not contradict this interpretation. While the language quoted in the text is somewhat ambiguous, it appears that the Court of Appeals interpreted ch. 996 to require an audit similar to the post-audit contemplated in Lemon II, in which "the burden will be upon the claimant to prove that the items of its claims are in fact solely for mandated services . . . ." 47 App. Div. 2d, at 400, 366 N. Y. S. 2d, at 908. As was made clear in Levitt v. Committee for Public Education, 413 U.S. 472 , however, limiting reimbursement to mandated services would not fully address the constitutional objections to ch. 138, since it would provide no assurance against reimbursement for sectarian mandated services. Thus, a post-audit like the one contemplated in Lemon II, which the Court characterized as a "ministerial `cleanup' function," 411 U.S., at 202 , would not in this case exclude payments that impermissibly aided religious purposes. [Footnote 6 The parties have considered the Academy's claim a test of the constitutionality of ch. 996. Claims filed by other schools have been stayed in the Court of Claims pending the resolution of this case. MR. JUSTICE WHITE, dissenting. Because the Court continues to misconstrue the First Amendment in a manner that discriminates against religion and is contrary to the fundamental educational needs of the [434 U.S. 125, 135] country, I dissent here as I have in Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Levitt v. Committee for Public Education, 413 U.S. 472 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); and Wolman v. Walter, 433 U.S. 229 (1977). [434 U.S. 125, 136]

liberal

organization

first_amendment

1992-056-01

United States Supreme Court HAZEN PAPER CO. v. BIGGINS(1993) No. 91-1600 Argued: January 13, 1993Decided: April 20, 1993 Petitioners fired respondent Biggins when he was 62 years old and apparently a few weeks short of the years of service he needed for his pension to vest. In his ensuing lawsuit, a jury found, inter alia, a willful violation of the Age Discrimination in Employment Act of 1967 (ADEA), which gave rise to liquidated damages. The District Court granted petitioners' motion for judgment notwithstanding the verdict on the "willfulness" finding, but the Court of Appeals reversed, giving considerable emphasis to evidence of pension interference in upholding ADEA liability and finding that petitioners' conduct was willful because, under the standard of Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 , they knew or showed reckless disregard for the matter of whether their conduct contravened the ADEA. Held: 1. An employer does not violate the ADEA by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. In a disparate treatment case, liability depends on whether the protected trait - under the ADEA, age - actually motivated the employer's decision. When that decision is wholly motivated by factors other than age, the problem that prompted the ADEA's passage - inaccurate and stigmatizing stereotypes about older workers' productivity and competence - disappears. Thus, it would be incorrect to say that a decision based on years of service - which is analytically distinct from age - is necessarily age-based. None of this Court's prior decisions should be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect. The foregoing holding does not preclude the possibility of liability where an employer uses pension status as a proxy for age, of dual liability under the Employee Retirement Income Security Act of 1974 and the ADEA, or of liability where vesting is based on age, rather than years of service. Because the Court of Appeals cited additional evidentiary support for ADEA liability, this case is remanded for that court to reconsider whether the jury had sufficient evidence to find such liability. Pp. 608-614. [507 U.S. 604, 605] 2. The Thurston "knowledge or reckless disregard" standard for liquidated damages applies not only where the predicate ADEA violation is a formal, facially discriminatory policy, as in Thurston, but also where it is an informal decision by the employer that was motivated by the employee's age. Petitioners have not persuaded this Court that Thurston was wrongly decided or that the Court should part from the rule of stare decisis. Applying the Thurston standard to cases of individual discrimination will not defeat the two-tiered system of liability intended by Congress. Since the ADEA affords an employer a "bona fide occupational qualification" defense, and exempts certain subject matters and persons, an employer could incorrectly but in good faith and nonrecklessly believe that the statute permits a particular age-based decision. Nor is there some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." The distinction between the formal, publicized policy in Thurston and the undisclosed factor here is not such a difference, since an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. Pp. 614-617. 953 F.2d 1405, vacated and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which REHNQUIST, C.J., and THOMAS, J., joined, post, p. 617. Robert B. Gordon argued the cause for petitioners. With him on the briefs were John M. Harrington, Jr., and John H. Mason. Maurice M. Cahillane, Jr., argued the cause for respondent. With him on the briefs were John J. Egan, Edward J. McDonough, Jr., and Eileen Z. Sorrentino. John R. Dunne argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solicitor General [507 U.S. 604, 606] Roberts, Edward C. DuMont, Donald R. Livingston, and Gwendolyn Young Reams. * [Footnote * Robert E. Williams, Douglas S. McDowell, and Mona C., Zeiberg filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Steven S. Zaleznick and Cathy Ventrell-Monsees; and for the National Employment Lawyers Association by Paul H. Tobias. JUSTICE O'CONNOR delivered the opinion of the Court. In this case, we clarify the standards for liability and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. 621 et seq. I Petitioner Hazen Paper Company manufactures coated, laminated, and printed paper and paperboard. The company is owned and operated by two cousins, petitioners Robert Hazen and Thomas N. Hazen. The Hazens hired respondent Walter F. Biggins as their technical director in 1977. They fired him in 1986, when he was 62 years old. Respondent brought suit against petitioners in the United States District Court for the District of Massachusetts, alleging a violation of the ADEA. He claimed that age had been a determinative factor in petitioners' decision to fire him. Petitioners contested this claim, asserting instead that respondent had been fired for doing business with competitors of Hazen Paper. The case was tried before a jury, which rendered a verdict for respondent on his ADEA claim and also found violations of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, 510, 29 U.S.C. 1140, and state law. On the ADEA count, the jury specifically found that petitioners "willfully" violated the statute. Under 7(b) of the ADEA, 29 U.S.C. 626(b), a "willful" violation gives rise to liquidated damages. [507 U.S. 604, 607] Petitioners moved for judgment notwithstanding the verdict. The District Court granted the motion with respect to a state law claim and the finding of "willfulness," but otherwise denied it. An appeal ensued. 953 F.2d 1405 (CA1 1992). The United States Court of Appeals for the First Circuit affirmed judgment for respondent on both the ADEA and ERISA counts, and reversed judgment notwithstanding the verdict for petitioners as to "willfulness." In affirming the judgments of liability, the Court of Appeals relied heavily on the evidence that petitioners had fired respondent in order to prevent his pension benefits from vesting. That evidence, as construed most favorably to respondent by the court, showed that the Hazen Paper pension plan had a 10-year vesting period and that respondent would have reached the 10-year mark had he worked "a few more weeks" after being fired. Id., at 1411. There was also testimony that petitioners had offered to retain respondent as a consultant to Hazen Paper, in which capacity he would not have been entitled to receive pension benefits. Id., at 1412. The Court of Appeals found this evidence of pension interference to be sufficient for ERISA liability, id., at 1416, and also gave it considerable emphasis in upholding ADEA liability. After summarizing all the testimony tending to show age discrimination, the court stated: "Based on the foregoing evidence, the jury could reasonably have found that Thomas Hazen decided to fire [respondent] before his pension rights vested and used the confidentiality agreement [that petitioners had asked respondent to sign] as a means to that end. The jury could also have reasonably found that age was inextricably intertwined with the decision to fire [respondent]. If it were not for [respondent's] age, sixty-two, his pension rights would not have been within a hairbreadth of vesting. [Respondent] was fifty-two years old when he was hired; his pension rights vested in ten years." Id., at 1412. [507 U.S. 604, 608] As to the issue of "willfulness" under 7(b) of the ADEA, the Court of Appeals adopted and applied the definition set out in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). In Thurston, we held that the airline's facially discriminatory job transfer policy was not a "willful" ADEA violation because the airline neither "knew [nor] showed reckless disregard for the matter of whether" the policy contravened the statute. Id., at 128 (internal quotation marks omitted). T he Court of Appeals found sufficient evidence to satisfy the Thurston standard, and ordered that respondent be awarded liquidated damages equal to and in addition to the underlying damages of $419,454.38. 953 F.2d, at 1415-1416. We granted certiorari to decide two questions. 505 U.S. 1203 (1992). First, does an employer's interference with the vesting of pension benefits violate the ADEA? Second, does the Thurston standard for liquidated damages apply to the case where the predicate ADEA violation is not a formal, facially discriminatory policy, as in Thurston, but rather an informal decision by the employer that was motivated by the employee's age? II A The courts of appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age. Compare White v. Westinghouse Electric Co., 862 F.2d 56, 62 (CA3 1988) (firing of older employee to prevent vesting of pension benefits violates ADEA); Metz v. Transit Mix, Inc., 828 F.2d 1202 (CA7 1987) (firing of older employee to save salary costs resulting from seniority violates ADEA) with Williams v. General Motors Corp., 656 F.2d 120, 130 n. 17 (CA5 1981) ("[S]eniority and age discrimination are unrelated. . . . We state without equivocation that the seniority a given [507 U.S. 604, 609] plaintiff has accumulated entitles him to no better or worse treatment in an age discrimination suit."), cert. denied. 455 U.S. 943 (1982); EEOC v. Clay Printing Co., 955 F.2d 936, 942 (CA4 1992) (emphasizing distinction between employee's age and years of service). We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age. We long have distinguished between "disparate treatment" and "disparate impact" theories of employment discrimination. "`Disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . . "[C]laims that stress "disparate impact" [by contrast] involve employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate impact theory." Teamsters v. United States, 431 U.S. 324, 335 , n. 15 (1977) (citation omitted) (construing Title VII of Civil Rights Act of 1964). The disparate treatment theory is, of course, available under the ADEA, as the language of that statute makes clear. "It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) (emphasis added). See Thurston, supra, at 120-125 (affirming ADEA [507 U.S. 604, 610] liability under disparate treatment theory). By contrast, we have never decided whether a disparate impact theory of liability is available under the ADEA, see Markham v. Geller, 451 U.S. 945 (1981) (REHNQUIST, J., dissenting from denial of certiorari), and we need not do so here. Respondent claims only that he received disparate treatment. In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. See, e.g., United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252 -256 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 -578 (1978). The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e.g., Thurston, supra; Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 704 -718 (1978). Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e.g., Anderson v. Bessemer City, 470 U.S. 564 (1985); Teamsters, supra, at 334-343. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome. Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, 460 U.S. 226 (1983), Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes. "Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported [507 U.S. 604, 611] by objective fact. . . . Moreover, the available empirical evidence demonstrated that arbitrary age lines were, in fact, generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers." Id., at 231. Thus, the ADEA commands that "employers are to evaluate [older] employees . . . on their merits, and not their age." Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985). The employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly. When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law 5.03 (1992). On average, an older employee has had more years in the workforce than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age-based." The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee's pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true [507 U.S. 604, 612] that older employees of Hazen Paper are more likely to be "close to vesting" than younger employees. Yet a decision by the company to fire an older employee solely because he has nine-plus years of service, and therefore is "close to vesting," would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be ___") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee - that he indeed is "close to vesting." We do not mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from vesting. Such conduct is actionable under 510 of ERISA, as the Court of Appeals rightly found in affirming judgment for respondent under that statute. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 -143 (1990). But it would not, without more, violate the ADEA. That law requires the employer to ignore an employee's age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (creating proof framework applicable to ADEA) (employer must have "legitimate, nondiscriminatory reason" for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee's race is an improper reason, but it is improper under Title VII, not the ADEA. We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older [507 U.S. 604, 613] thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, cf. Metz, 828 F.2d, at 1208 (using "proxy" to mean statutory equivalence), but in the sense that the employer may suppose a correlation between the two factors and act accordingly. Nor do we rule out the possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status. Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, see 1 Mamorsky, supra, at 5.022., and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. Besides the evidence of pension interference, the Court of Appeals cited some additional evidentiary support for ADEA liability. Although there was no direct evidence of petitioners' motivation, except for two isolated comments by the Hazens, the Court of Appeals did note the following indirect evidence: respondent was asked to sign a confidentiality agreement, even though no other employee had been required to do so, and his replacement was a younger man who was given a less onerous agreement. 953 F.2d, at 1411. In the ordinary ADEA case, indirect evidence of this kind may well suffice to support liability if the plaintiff also shows that the employer's explanation for its decision - here, that respondent had been disloyal to Hazen Paper by doing business with its competitors - is "`unworthy of credence.'" Aikens, 460 U.S., at 716 (quoting Burdine, 450 U.S., at 256 ). But inferring age motivation from the implausibility of the employer's explanation may be problematic in cases where other unsavory motives, such as pension interference, were present. This issue is now before us in the Title VII context, [507 U.S. 604, 614] see Hicks v. St. Mary's Honor Center, 970 F.2d 487 (CA8 1992), cert. granted, 506 U.S. 1042 (1993), and we will not address it prematurely. We therefore remand the case for the Court of Appeals to reconsider whether the jury had sufficient evidence to find an ADEA violation. B Because we remand for further proceedings, we also address the second question upon which certiorari was granted: the meaning of "willful" in 7(b) of the ADEA, which provides for liquidated damages in the case of a "willful" violation. In Thurston, we thoroughly analyzed 7(b) and concluded that "a violation of the Act [would be] "willful" if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA" 469 U.S., at 126 (internal quotation marks and ellipsis omitted). We sifted through the legislative history of 7(b), which had derived from 16(a) of the Fair Labor Standards Act (FLSA), 52 Stat. 1069, as amended, 29 U.S.C. 216(a), and determined that the accepted judicial interpretation of 16(a) at the time of the passage of the ADEA supported the "knowledge or reckless disregard" standard. See 469 U.S., at 126 . We found that this standard was consistent with the meaning of "willful" in other criminal and civil statutes. See id., at 126-127. Finally, we observed that Congress aimed to create a "two-tiered liability scheme," under which some but not all ADEA violations would give rise to liquidated damages. We therefore rejected a broader definition of "willful" providing for liquidated damages whenever the employer knew that the ADEA was "in the picture." See id., at 127-128. In McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), a FLSA case, we reaffirmed the Thurston standard. The question in Richland Shoe was whether the limitations provision [507 U.S. 604, 615] of the FLSA, creating a 3-year period for "willful" violations, should be interpreted consistently with Thurston. We answered that question in the affirmative. "The word `willful' is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston - that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute - is surely a fair reading of the plain language of the Act." 486 U.S., at 133 . Once again we rejected the "in the picture standard" because it would "virtually obliterat[e] any distinction between willful and nonwillful violations." Id., at 132-133. Surprisingly, the courts of appeals continue to be confused about the meaning of the term "willful" in 7(b) of the ADEA. A number of circuits have declined to apply Thurston to what might be called an informal disparate treatment case - where age has entered into the employment decision on an ad hoc, informal basis, rather than through a formal policy. At least one circuit refuses to impose liquidated damages in such a case unless the employer's conduct was "outrageous." See, e.g., Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57-58 (CA3 1989). Another requires that the underlying evidence of liability be direct, rather than circumstantial. See, e.g., Neufeld v. Searle Laboratories, 884 F.2d 335, 340 (CA8 1989). Still others have insisted that age be the "predominant," rather than simply a determinative, factor. See, e.g., Spulak v. K Mart Corp., 894 F.2d 1150, 1159 (CA10 1990); Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 158 (CA6 1988). The chief concern of these circuits has been that the application of Thurston would defeat the two-tiered system of liability intended by Congress, because every employer that engages in informal age [507 U.S. 604, 616] discrimination knows or recklessly disregards the illegality of its conduct. We believe that this concern is misplaced. The ADEA does not provide for liquidated damages "where consistent with the principle of a two-tiered liability scheme." It provides for liquidated damages where the violation was "willful." That definition must be applied here unless we overrule Thurston, or unless there is some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." As for the first possibility, petitioners have not persuaded us that Thurston was wrongly decided, let alone that we should depart from the rule of stare decisis. The two-tiered liability principle was simply one interpretive tool among several that we used in Thurston to decide what Congress meant by the word "willful," and in any event we continue to believe that the "knowledge or reckless disregard" standard will create two tiers of liability across the range of ADEA cases. It is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a "bona fide occupational qualification" defense, see 29 U.S.C. 623(f)(1), and exempts certain subject matters and persons, see, e.g., 623(f)(2) (exemption for bona fide seniority systems and employee benefit plans); 631(c) (exemption for bona fide executives and high policymakers). If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed. See Richland Shoe, supra, at 135, n. 13. Indeed, in Thurston itself, we upheld liability but reversed an award of liquidated damages because the employer "acted [nonrecklessly] and in good faith in attempting to determine whether [its] plan would violate the ADEA." 469 U.S., at 129 . [507 U.S. 604, 617] Nor do we see how the instant case can be distinguished from Thurston, assuming that petitioners did indeed fire respondent because of his age. The only distinction between Thurston and the case before us is the existence of formal discrimination. Age entered into the employment decision there through a formal and publicized policy, and not as an undisclosed factor motivating the employer on an ad hoc basis, which is what respondent alleges occurred here. But surely an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages. We therefore reaffirm that the Thurston definition of "willful" - that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute - applies to all disparate treatment cases under the ADEA. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring. I agree with the Court that the Court of Appeals placed improper reliance on respondent's evidence of pension interference, and that the standard for determining willfulness announced in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), applies to individual acts of age discrimination as [507 U.S. 604, 618] well as age discrimination manifested in formal, company-wide policy. I write to underscore that the only claim based upon the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., asserted by respondent in this litigation is that petitioners discriminated against him because of his age. He has advanced no claim that petitioners' use of an employment practice that has a disproportionate effect on older workers violates the ADEA. See App. 2930 (amended complaint); 5 Record 71-76 (jury instructions). As a result, nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called "disparate impact" theory of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17. As the Court acknowledges, ante, at 610, we have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA. See Markham v. Geller, 451 U.S. 945 (1981) (REHNQUIST J., dissenting from denial of certiorari); Metz v. Transit Mix, Inc., 828 F.2d 1202, 1216-1220 (CA7 1987) (Easterbrook, J., dissenting); Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan.L.Rev. 837 (1982). It is on the understanding that the Court does not reach this issue that I join in its opinion. [507 U.S. 604, 619]

conservative

person

civil_rights

1970-135-01

United States Supreme Court SIMPSON v. FLORIDA(1971) No. 1267 Argued: Decided: June 14, 1971 A store manager and a customer were robbed by two armed men. Petitioner was tried and convicted of robbing the manager, but on retrial after reversal he was acquitted. He was then charged with robbing the customer, his motion to quash the information on double jeopardy grounds was overruled, and he was found guilty. Each jury verdict was a general one. The District Court of Appeal, after the decision in Ashe v. Swenson, 397 U.S. 436 , held as a matter of law that, while the acquittal at the second trial entitled petitioner to invoke collateral estoppel, his conviction at the first trial gave rise to a "double collateral estoppel," allowing the State to rely on the finding of the jury at the first trial that he was a participant in the robbery. The State Supreme Court denied review. Held: As stated in Ashe, supra, "mutuality" is not an ingredient of the collateral estoppel rule imposed on the States by the Fifth and Fourteenth Amendments; and unless the jury verdict in the second trial "could have [been] grounded . . . upon an issue other than that which the defendant seeks to foreclose from consideration" the double jeopardy provision vitiates petitioner's conviction. Certiorari granted; 237 So.2d 341. vacated and remanded. PER CURIAM. On November 9, 1966, two armed men entered a store in Jacksonville, Florida, and robbed the manager and a customer. During 1967 petitioner was tried and convicted in the state courts, after a jury trial, of the armed robbery of the manager, but the conviction was reversed on appeal because the trial judge neglected to instruct the jury on the lesser-included offense of larceny. Griffin v. State, 202 So.2d 602 (Fla. Dist. Ct. App. 1967). In 1968 petitioner was retried on the same charge and acquitted. Subsequently, he was charged with robbing the customer. His motion to quash the information on [403 U.S. 384, 385] double jeopardy grounds was overruled and a jury found petitioner guilty of armed robbery. Each of the three jury verdicts here involved was a general one. The trial court imposed a 30-year sentence and petitioner appealed to the District Court of Appeal. Prior to the adjudication of petitioner's appeal, this Court rendered its decision in Ashe v. Swenson, 397 U.S. 436 . We there held that the principle of collateral estoppel, which "bars relitigation between the same parties of issues actually determined at a previous trial," id., at 442, is "embodied in the Fifth Amendment guarantee against double jeopardy," id., at 445, and is fully applicable to the States, by force of the Fourteenth Amendment, in light of Benton v. Maryland, 395 U.S. 784 . The factual situation presented in Ashe remarkably parallels that of the instant case. There three or four men had interrupted a poker game and robbed all six participants. Petitioner had been acquitted by a general jury verdict on a charge of robbing one of the poker players, but was later tried and convicted of robbing a second. He contended that the prohibition against double jeopardy operated as a bar to the second prosecution because the only issue in each trial was the identity of the robbers. We held in Ashe that: "Where a previous judgment of acquittal was based upon a general verdict . . . [the rule of collateral estoppel] requires a court to `examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Ashe, supra, at 444. Here, as in Ashe, petitioner contends that his identity as one of the robbers was the sole disputed issue at each of his trials. The District Court of Appeal, however, [403 U.S. 384, 386] declined to examine the record of the second trial, but simply held instead, as a matter of law, that while petitioner's acquittal at the second trial entitled him to invoke collateral estoppel, his conviction at the first trial (where the sufficiency of the evidence was not disputed on appeal) gave rise to a "double collateral estoppel in that by application of this doctrine, appellant is estopped from contending without further proof that the State failed to prove the issue of his identity as one of the robbers on . . . the second trial inasmuch as on the first trial a jury had found above and beyond a reasonable doubt that appellant was a participant in the robbery." Simpson v. State, 237 So.2d 341, 342 (Fla. App. 1970). The Supreme Court of Florida, by a divided vote, declined review, and petitioner filed a timely petition for a writ of certiorari with this Court. We grant the writ and we vacate the judgment. The ground upon which the state court resolved petitioner's contention is plainly not tenable. Indeed, in Ashe itself, we specifically noted that "mutuality" was not an ingredient of the collateral estoppel rule imposed by the Fifth and Fourteenth Amendments upon the States. Ashe, supra, at 443. It is clear that Florida could not have retried petitioner a third time on the charge of robbing the store manager simply because it had previously secured a jury verdict of guilty as well as one of acquittal. And, had the second trial never occurred, the prosecutor could not, while trying the case under review, have laid the first jury verdict before the trial judge and demanded an instruction to the jury that, as a matter of law, petitioner was one of the armed robbers in the store that night. It must, therefore, be equally clear that unless the jury verdict in the second trial "could have [been] grounded . . . upon an issue other than that which the defendant seeks to foreclose [403 U.S. 384, 387] from consideration" the constitutional guarantee against being twice put in jeopardy for the same offense vitiates petitioner's conviction. The judgment of the Florida District Court of Appeal is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins. The robbery of the manager and the robbery of the customer grew out of one criminal episode. I agree with the Court's disposition but, for the reasons stated in my concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448 (1970), I would also hold that on the facts of this case the Double Jeopardy Clause prohibited Florida from prosecuting petitioner for the robbery of the customer. The CHIEF JUSTICE and MR. JUSTICE BLACKMUN dissent for the reasons given in the dissenting opinion of THE CHIEF JUSTICE in Ashe v. Swenson, 397 U.S. 436, 460 . [403 U.S. 384, 388]

liberal

public_entity

criminal_procedure

2005-029-01

United States Supreme Court MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN v. DARIUSH ELAHI(2006) No. 04-1095 Argued: Decided: February 21, 2006 Per Curiam. A private citizen seeks to attach an asset belonging to Iran's Ministry of Defense in order to help satisfy a judgment for money damages. The question raised is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. §1602 et seq. (2000 ed. and Supp. III), forbids that attachment. The judgment for money damages consists of a default judgment against the Islamic Republic of Iran (for about $300 million) that the private citizen, Dariush Elahi, obtained in a federal-court lawsuit claiming that the Republic had murdered his brother. Elahi v. Islamic Republic of Iran, 124 F.Supp. 2d 97, 103 (DC 2000). The asset is an arbitration award (against a third party), which Iran's Ministry of Defense obtained in Switzerland. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 385 F.3d 1206, 1211 (CA9 2004). The Ministry asked the Federal District Court for the Southern District of California to confirm the award. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 236 F.Supp. 2d 1140 (2002). The court did so. And Elahi then intervened, seeking to impose a lien upon the award. The Ministry opposed the attachment on the ground that the Act grants it immunity from such a claim. The Federal District Court rejected the Ministry's immunity defense on the ground that, by suing to enforce the award, the Ministry had waived any such immunity. On appeal the Ninth Circuit disagreed with the District Court about waiver. But it then found against the Ministry on a different ground--a ground that the parties had not argued. The Act says that under certain conditions the property of an "agency or instrumentality" of a foreign government is "not ... immune from attachment" if the agency is "engaged in commercial activity in the United States." 28 U.S.C. §1610(b) (emphasis added). The Court of Appeals found that the Ministry engages in commercial activity and that the other conditions were satisfied. 385 F.3d, at 1219-1222 (applying §1610(b)(2)). And it held that this section of the Act barred the Ministry's assertion of immunity. Ibid. The Ministry filed a petition for certiorari asking us to review that decision. The Solicitor General agrees with the Ministry that we should grant the writ but limited to the Ministry's Question 1, namely whether "the property of a foreign state stricto sensu, situated in the United States" is "immune from attachment ... as provided in the Foreign Sovereign Immunities Act." Pet. for Cert. i (citing §§1603(a), 1610(a)). The Solicitor General also asks us to vacate the judgment of the Court of Appeals and remand the case for consideration of whether the Ministry is simply a "foreign state" (what the Ministry calls "a foreign state stricto sensu") or whether the Ministry is an "agency or instrumentality" of a foreign state (as the Ninth Circuit held). Brief for United States as Amicus Curiae 15-17. We grant the writ limited to Question 1. The Act, as it applies to the "property in the United States of a foreign state," §1610(a) (emphasis added), does not contain the "engaged in commercial activity" exception that the Ninth Circuit described. That exception applies only where the property at issue is property of an "agency or instrumentality" of a foreign state. Compare §1610(b) ("property ... of an agency or instrumentality of a foreign state engaged in commercial activity") with §1610(a) ("property ... of a foreign state used for a commercial activity") (emphasis added). The difference is critical. Moreover, in the Solicitor General's view a defense ministry (unlike, say, a government-owned commercial enterprise) generally is not an "agency or instrumentality" of a foreign state but an inseparable part of the state itself. Brief for United States as Amicus Curiae 8-11; see also Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (CADC 1994) ("hold[ing] that armed forces are as a rule so closely bound up with the structure of the state that they must in all cases be considered as the 'foreign state' itself, rather than a separate 'agency or instrumentality' of the state"). We shall not now determine whether the Solicitor General is correct about the status of the Ministry, for the Ninth Circuit did not address the question nor did the parties argue the matter before the Circuit. Neither can we fault the Ministry for that failure. As we said, supra, at 1, the District Court based its denial of immunity upon waiver. The parties' Ninth Circuit briefs focused on matters not relevant here (such as the waiver question), with one exception. The exception consists of a footnote in Elahi's brief mentioning the Act's "agency and instrumentality" provision. That footnote, however, does not ask for affirmance on that basis; nor did it provide the Ministry with clear notice that a reply was necessary. Answering Brief of Appellee in No. 03-55015 (CA9), p. 45, n. 27 (stating that "[i]f [the Ministry] is considered 'an agency or instrumentality of a foreign state,' rather than the foreign state itself, Mr. Elahi's attachment still is valid" (emphasis added)). The Ninth Circuit said that it was free to affirm on "any ground supported by the record." 385 F.3d, at 1219, n. 15. But the court did not explain what in the record might demonstrate that the Ministry is an "agency or instrumentality" of the state rather than an integral part of the state itself. The court noted that "Elahi appears to concede" that the Ministry is an "agency and instrumentality," id., at 1218, n.13, but any relevant concession would have to have come from the Ministry, not from Elahi, whose position the concession favors. Thus, in implicitly concluding that the Ministry was an "agency or instrumentality" of the Republic of Iran within the meaning of §1610(b), the Ninth Circuit either mistakenly relied on a concession by respondent that could not possibly bind petitioner, or else erroneously presumed that there was no relevant distinction between a foreign state and its agencies or instrumentalities for purposes of that subsection. See §1603(a), (b). Either way, the Ninth Circuit committed error that was essential to its judgment in favor of respondent. Because the Ninth Circuit did not consider, and the Ministry had no reasonable opportunity to argue, the critical legal point we have mentioned, we vacate the judgment of the Ninth Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered.

liberal

other

economic_activity

1967-170-01

United States Supreme Court JONES v. UNITED STATES(1968) No. 135 Argued: Decided: June 10, 1968 Rehearing granted; certiorari granted; 374 F.2d 414, vacated and remanded. Herbert Monte Levy for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. PER CURIAM. The petition for rehearing is granted and the order denying the petition for writ of certiorari, 389 U.S. 835 , is set aside. The petition for a writ of certiorari is granted. The judgment of the Court of Appeals for the Second Circuit is vacated and the case is remanded to that court for further consideration in light of Bruton v. United States, 391 U.S. 123 . See Roberts v. Russell, ante, p. 293. MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U.S. 123, 138 (1968). MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. [392 U.S. 299, 300]

liberal

public_entity

criminal_procedure

1976-136-01

United States Supreme Court NATIONAL SOCIALIST PARTY v. SKOKIE(1977) No. 76-1786 Argued: Decided: June 14, 1977 The Illinois Supreme Court denied a stay of the trial court's injunction prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Held: 1. The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right. Certiorari granted; reversed and remanded. PER CURIAM. On April 29, 1977, the Circuit Court of Cook County entered an injunction against petitioners. The injunction prohibited them from performing any of the following actions within the village of Skokie, Ill.: "[m]arching, walking or parading in the uniform of the National Socialist Party of America; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion." The Illinois Appellate Court denied an application for stay pending appeal. Applicants then filed a petition for a stay in the Illinois Supreme Court, together with a request for [432 U.S. 43, 44] a direct expedited appeal to that court. The Illinois Supreme Court denied both the stay and leave for an expedited appeal. Applicants then filed an application for a stay with MR. JUSTICE STEVENS, as Circuit Justice, who referred the matter to the Court. Treating the application as a petition for certiorari from the order of the Illinois Supreme Court, we grant certiorari and reverse the Illinois Supreme Court's denial of a stay. That order is a final judgment for purposes of our jurisdiction, since it involved a right "separable from, and collateral to" the merits, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949). See Abney v. United States, 431 U.S. 651 (1977); cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476 -487 (1975). It finally determined the merits of petitioners' claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the period of appellate review which, in the normal course, may take a year or more to complete. If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380 U.S. 51 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1327 (1975) (BLACKMUN, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right. Reversed and remanded for further proceedings not inconsistent with this opinion. So ordered. MR. JUSTICE WHITE would deny the stay. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting. The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of [432 U.S. 43, 45] Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "[f]inal judgmen[t] or decre[e] rendered by the highest court of a State in which a decision could be had," which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U.S.C. 1257. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476 -487 (1975), relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim. I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as Freedman v. Maryland, 380 U.S. 51 (1965), and Nebraska Press Assn. v. Stuart, 423 U.S. 1319 (1975), relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined. [432 U.S. 43, 46]

liberal

public_entity

first_amendment

1952-008-01

United States Supreme Court UNITED STATES v. BEACON BRASS CO.(1952) No. 30 Argued: October 23, 1952Decided: November 10, 1952 A willful attempt to evade or defeat taxes by making false statements to Treasury representatives violates 145 (b) of the Internal Revenue Code, 26 U.S.C. 145 (b), and is not punishable exclusively under 35 (A) of the Criminal Code, 18 U.S.C. 1001, which outlaws the willful making of false statements "in any matter" within the jurisdiction of any department or agency of the United States. Pp. 43-47. 106 F. Supp. 510, reversed. The District Court dismissed an indictment under 145 (b) of the Internal Revenue Code, 26 U.S.C. 145 (b), on the ground that it failed to charge an offense thereunder. 106 F. Supp. 510. On direct appeal to this Court under 18 U.S.C. 3731, reversed, p. 47. Marvin E. Frankel argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Lyon, Ellis N. Slack and Melva M. Graney. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction. Richard Maguire argued the cause and filed a brief for appellees. MR. JUSTICE MINTON delivered the opinion of the Court. On March 16, 1951, a one-count indictment was returned in the United States District Court for the District of Massachusetts against the appellees, Beacon Brass Company, a corporation, and Maurice Feinberg, its [344 U.S. 43, 44] president and treasurer. The indictment charged that in violation of 145 (b) of the Internal Revenue Code, 40 Stat. 1085, as amended, 26 U.S.C. 145 (b), the appellees had willfully attempted to evade taxes by making false statements to Treasury representatives on October 24, 1945, "for the purpose of supporting, ratifying, confirming and concealing the fraudulent and incorrect statements and representations made in the corporate tax return of said Beacon Brass Co., Inc., for the fiscal period ending October 31, 1944, filed on or about January 5, 1945 . . . ." Section 145 (b) provides in pertinent part: "[A]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony . . . ." (Emphasis supplied.) The six-year limitation period, 43 Stat. 341, 342, as amended, 26 U.S.C. 3748 (a) (2), applicable to offenses under this statute, had expired on a charge for filing a false tax return in January 1945, but it had not expired on a charge of making false statements to Treasury employees in October 1945. The District Court viewed the indictment as charging the separate crimes of filing a false return and making subsequent false statements to Treasury representatives, and dismissed the indictment as duplicitous. On September 14, 1951, a second indictment was returned against the appellees which repeated the charge that in violation of 145 (b) they "did wilfully and knowingly attempt to defeat and evade a large part of the taxes due and owing by the said corporation . . . by making certain false and fraudulent statements and representations, at a hearing and conference before representatives and employees of the United States Treasury [344 U.S. 43, 45] Department, on or about October 24, 1945 . . . ." Reference to the allegedly false return filed in January 1945 was omitted, and instead it was charged that the false statements were made "for the purpose of concealing additional unreported net income . . . ." Section 35 (A) of the Criminal Code, 18 U.S.C. (1946 ed.) 80 (now 18 U.S.C. (Supp. V) 1001) makes it unlawful to "knowingly and willfully . . . make . . . any false or fraudulent statements or representations . . . in any matter within the jurisdiction of any department or agency of the United States . . . ." Obviously, at the times of the indictments here, the three-year limitation period, 18 U.S.C. (Supp. V) 3282, for violations of this statute had expired as to statements made in October 1945. The District Court concluded that since 35 (A) deals specifically with false statements, Congress must be presumed to have intended that the making of false statements should be punishable only under 35 (A). Therefore, the District Court dismissed the indictment on the ground that it failed to charge an offense under 26 U.S.C. 145 (b). 106 F. Supp. 510. We noted probable jurisdiction of the United States' appeal taken under authority of 18 U.S.C. (Supp. V) 3731. We have before us two statutes, each of which proscribes conduct not covered by the other, but which overlap in a narrow area illustrated by the instant case. At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. United States v. Noveck, 273 U.S. 202, 206 ; Gavieres v. United States, 220 U.S. 338 . Unlike 35 (A), 145 (b) requires proof that the false statements were made in a willful effort to evade taxes. The purpose to evade taxes is crucial under this section. The language of 145 (b) which outlaws willful attempts to evade taxes "in any manner" is clearly broad enough to include false statements made to Treasury representatives [344 U.S. 43, 46] for the purpose of concealing unreported income. Cf. Spies v. United States, 317 U.S. 492, 499 . The question raised by the decision below is whether by enacting a statute specifically outlawing all false statements in matters under the jurisdiction of agencies of the United States, Congress intended thereby to exclude the making of false statements from the scope of 145 (b). We do not believe that Congress intended to require the tax-enforcement authorities to deal differently with false statements than with other methods of tax evasion. By providing that the sanctions of 145 (b) should be "in addition to other penalties provided by law," Congress recognized that some methods of attempting to evade taxes would violate other statutes as well. See Taylor v. United States, 179 F.2d 640, 644. Moreover, since no distinction is made in 35 (A) between written and oral statements, the reasoning of the court below would be equally applicable to false tax returns which are, of course, false written statements. But the Courts of Appeals have uniformly applied 145 (b) to attempts to evade taxes by filing false returns. E. g., Gaunt v. United States, 184 F.2d 284, 288; Taylor v. United States, supra, at 643-644. Further support for our conclusion can be found in United States v. Noveck, supra, where this Court rejected the contention that the enactment of 145 (b) impliedly repealed the general perjury statute insofar as that statute applied to false tax returns made under oath. Cf. United States v. Gilliland, 312 U.S. 86, 93 , 95-96. Finally, the enactment of other statutes expressly outlawing false statements in particular contexts, e. g., 18 U.S.C. (Supp. V) 1010, 1014, negates the assumption - which was the foundation of the decision of the court below - that Congress intended the making of false statements to be punishable only under 35 (A). The appellees contend that the acts charged constitute only one crime of tax evasion which was complete when [344 U.S. 43, 47] the allegedly false tax return was filed. On the basis of this contention, appellees seek to sustain the decision below on the grounds that the six-year statute of limitations had run, and that the dismissal of the first indictment is res judicata and a bar to the second indictment for the same offense. We do not consider these questions because our jurisdiction on this appeal is limited to review of the District Court's construction of the statute in the light of the facts alleged in the indictment. 18 U.S.C. (Supp. V) 3731; United States v. Borden Co., 308 U.S. 188, 206 -207. The judgment of the District Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE BLACK is of the opinion that the District Court reached the right result and would affirm its judgment. [344 U.S. 43, 48]

conservative

person

criminal_procedure

2008-040-03

United States Supreme Court ENTERGY CORP. v. RIVERKEEPER, INC., ET AL.(2009) No. 07-588 Argued: December 2, 2008Decided: April 1, 2009 Petitioners' powerplants have "cooling water intake structures" that threaten the environment by squashing against intake screens ("impingement") or suctioning into the cooling system ("entrainment") aquatic organisms from the water sources tapped to cool the plants. Thus, the facilities are subject to regulation under the Clean Water Act, which mandates that "[a]ny standard established pursuant to section 1311 ... or section 1316 ... and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. §1326(b). Sections 1311 and 1316, in turn, employ a variety of "best technology" standards to regulate effluent discharge into the Nation's waters. The Environmental Protection Agency (EPA) promulgated the §1326(b) regulations at issue after nearly three decades of making the "best technology available" determination on a case-by-case basis. Its "Phase I" regulations govern new cooling water intake structures, while the "Phase II" rules at issue apply to certain large existing facilities. In the latter rules, the EPA set "national performance standards," requiring most Phase II facilities to reduce "impingement mortality for [aquatic organisms] by 80 to 95 percent from the calculation baseline," and requiring a subset of facilities to reduce entrainment of such organisms by "60 to 90 percent from [that] baseline." 40 CFR §125.94(b)(1), (2). However, the EPA expressly declined to mandate closed-cycle cooling systems, or equivalent reductions in impingement and entrainment, as it had done in its Phase I rules, in part because the cost of rendering existing facilities closed-cycle compliant would be nine times the estimated cost of compliance with the Phase II performance standards, and because other technologies could approach the performance of closed-cycle operation. The Phase II rules also permit site-specific variances from the national performance standards, provided that the permit-issuing authority imposes remedial measures that yield results "as close as practicable to the applicable performance standards." §125.94(a)(5)(i), (ii). Respondents--environmental groups and various States--challenged the Phase II regulations. Concluding that cost-benefit analysis is impermissible under 33 U.S.C. §1326(b), the Second Circuit found the site-specific cost-benefit variance provision unlawful and remanded the regulations to the EPA for it to clarify whether it had relied on cost-benefit analysis in setting the national performance standards. Held:The EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. Pp.7-16. (a)The EPA's view that §1326(b)'s "best technology available for minimizing adverse environmental impact" standard permits consideration of the technology's costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute--not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844. The Second Circuit took "best technology" to mean the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies. This reading is not precluded by the phrase "for minimizing adverse environmental impact." Minimizing admits of degree and is not necessarily used to refer exclusively to the "greatest possible reduction." Other Clean Water Act provisions show that when Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language, e.g., "elimination of discharges of all pollutants," §1311(b)(2)(A). Thus, §1326(b)'s use of the less ambitious goal of "minimizing adverse environmental impact" suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them. Pp.7-9. (b)Considering §1326(b)'s text, and comparing it with the text and statutory factors applicable to parallel Clean Water Act provisions, prompts the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. In the Phase II rules the EPA sought only to avoid extreme disparities between costs and benefits, limiting variances from Phase II's "national performance standards" to circumstances where the costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii). In defining "national performance standards" the EPA assumed the application of technologies whose benefits approach those estimated for closed-cycle cooling systems at a fraction of the cost. That the EPA has for over thirty years interpreted §1326(b) to permit a comparison of costs and benefits, while not conclusive, also tends to show that its interpretation is reasonable and hence a legitimate exercise of its discretion. Even respondents and the Second Circuit ultimately recognize that some comparison of costs and benefits is permitted. The Second Circuit held that §1326(b) mandates only those technologies whose costs can be reasonably borne by the industry. But whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. Likewise, respondents concede that the EPA need not require that industry spend billions to save one more fish. This concedes the principle, and there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate. Pp.9-16. 475 F.3d 83, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined. ENTERGY CORPORATION, PETITIONER 07-588v. RIVERKEEPER, INC., etal. PSEG FOSSIL LLC, etal., PETITIONERS 07-589v. RIVERKEEPER, INC., etal. UTILITY WATER ACT GROUP, PETITIONER 07-597v. RIVERKEEPER, INC., etal. on writs of certiorari to the united states court of appeals for the second circuit [April 1, 2009] Justice Scalia delivered the opinion of the Court. These cases concern a set of regulations adopted by the Environmental Protection Agency (EPA or agency) under §316(b) of the Clean Water Act, 33 U.S.C. §1326(b). 69 Fed. Reg. 41576 (2004). Respondents--environmental groups and various States1--challenged those regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F.3d 83, 99-100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b). I Petitioners operate--or represent those who operate--large powerplants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ "cooling water intake structures" that extract water from nearby water sources. These structures pose various threats to the environment, chief among them the squashing against intake screens (elegantly called "impingement") or suction into the cooling system ("entrainment") of aquatic organisms that live in the affected water sources. See 69 Fed. Reg. 41586. Accordingly, the facilities are subject to regulation under the Clean Water Act, 33 U.S.C. §1251 et seq., which mandates: "Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." §1326(b). Sections 1311 and 1316, in turn, employ a variety of "best technology" standards to regulate the discharge of effluents into the Nation's waters. The §1326(b) regulations at issue here were promulgated by the EPA after nearly three decades in which the determination of the "best technology available for minimizing [cooling water intake structures'] adverse environmental impact" was made by permit-issuing authorities on a case-by-case basis, without benefit of a governing regulation. The EPA's initial attempt at such a regulation came to nought when the Fourth Circuit determined that the agency had failed to adhere to the procedural requirements of the Administrative Procedure Act. Appalachian Power Co. v. Train, 566 F.2d 451, 457 (1977). The EPA withdrew the regulation, 44 Fed. Reg. 32956 (1979), and instead published "draft guidance" for use in implementing §1326(b)'s requirements via site-specific permit decisions under §1342. See EPA, Office of Water Enforcement Permits Div., Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-500, (May 1, 1977), at http://www.epa.gov/waterscience/316b/files/1977AEIguid.pdf, (all Internet materials as visited Mar. 30, 2009, and available in Clerk of Court's case file); 69 Fed. Reg. 41584 (describing system of case-by-case permits under the draft guidance). In 1995, the EPA entered into a consent decree which, as subsequently amended, set a multiphase timetable for the EPA to promulgate regulations under §1326(b). See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314 (AGS), 2001 WL 1505497, *1 (SDNY, Nov. 27, 2001). In the first phase the EPA adopted regulations governing certain new, large cooling water intake structures. 66 Fed. Reg. 65256 (2001) (Phase I rules); see 40 CFR §§125.80(a), 125.81(a) (2008). Those rules require new facilities with water-intake flow greater than 10 million gallons per day to, among other things, restrict their inflow "to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system."2 §125.84(b)(1). New facilities with water-intake flow between 2 million and 10 million gallons per day may alternatively comply by, among other things, reducing the volume and velocity of water removal to certain levels. §125.84(c). And all facilities may alternatively comply by demonstrating, among other things, "that the technologies employed will reduce the level of adverse environmental impact ... to a comparable level" to what would be achieved by using a closed-cycle cooling system. §125.84(d). These regulations were upheld in large part by the Second Circuit in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2004). The EPA then adopted the so-called "Phase II" rules at issue here.3 69 Fed. Reg. 41576. They apply to existing facilities that are point sources, whose primary activity is the generation and transmission (or sale for transmission) of electricity, and whose water-intake flow is more than 50 million gallons of water per day, at least 25 percent of which is used for cooling purposes. Ibid. Over 500 facilities, accounting for approximately 53 percent of the Nation's electric-power generating capacity, fall within Phase II's ambit. See EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, A3-13, Table A3-4 (Feb. 2004), online at http://www. epa.gov/waterscience/316b/phase2/econbenefits/final/a3.pdf. Those facilities remove on average more than 214 billion gallons of water per day, causing impingement and entrainment of over 3.4 billion aquatic organisms per year. 69 Fed. Reg. 41586. To address those environmental impacts, the EPA set "national performance standards," requiring Phase II facilities (with some exceptions) to reduce "impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline"; a subset of facilities must also reduce entrainment of such aquatic organisms by "60 to 90 percent from the calculation baseline." 40 CFR §125.94(b)(1), (2); see §125.93 (defining "calculation baseline"). Those targets are based on the environmental improvements achievable through deployment of a mix of remedial technologies, 69 Fed. Reg. 41599, which the EPA determined were "commercially available and economically practicable," id., at 41602. In its Phase II rules, however, the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. Id., at 41601. It refused to take that step in part because of the "generally high costs" of converting existing facilities to closed-cycle operation, and because "other technologies approach the performance of this option." Id., at 41605. Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent, id., at 41601, (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year, id., at 41605, nine times the estimated cost of compliance with the Phase II performance standards, id., at 41666. Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems "would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal," possibly requiring the construction of "20 additional 400-MW plants ... to replace the generating capacity lost." Id., at 41605. The EPA thus concluded that "[a]lthough not identical, the ranges of impingement and entrainment reduction are similar under both options.... [Benefits of compliance with the Phase II rules] can approach those of closed-cycle recirculating at less cost with fewer implementation problems." Id., at 41606. The regulations permit the issuance of site-specific variances from the national performance standards if a facility can demonstrate either that the costs of compliance are "significantly greater than" the costs considered by the agency in setting the standards, 40 CFR §125.94(a)(5)(i), or that the costs of compliance "would be significantly greater than the benefits of complying with the applicable performance standards," §125.94(a)(5)(ii). Where a variance is warranted, the permit-issuing authority must impose remedial measures that yield results "as close as practicable to the applicable performance standards." §125.94(a)(5)(i), (ii). Respondents challenged the EPA's Phase II regulations, and the Second Circuit granted their petition for review and remanded the regulations to the EPA. The Second Circuit identified two ways in which the EPA could permissibly consider costs under 33 U.S.C. §1326(b): (1) in determining whether the costs of remediation "can be 'reasonably borne' by the industry," and (2) in determining which remedial technologies are the most cost-effective, that is, the technologies that reach a specified level of benefit at the lowest cost. 475 F.3d, at 99-100. See also id., at 98, and n.10. It concluded, however, that cost-benefit analysis, which "compares the costs and benefits of various ends, and chooses the end with the best net benefits," id., at 98, is impermissible under §1326(b), id., at 100. The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Id., at 114. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. Id., at 104-105. (The remand was also based on other grounds which are not at issue here.) The EPA suspended operation of the Phase II rules pending further rulemaking. 72 Fed. Reg. 37107 (2007). We then granted certiorari limited to the following question: "Whether [§1326(b)] ... authorizes the [EPA] to compare costs with benefits in determining 'the best technology available for minimizing adverse environmental impact' at cooling water intake structures." 552 U. S. ___ (2008). II In setting the Phase II national performance standards and providing for site-specific cost-benefit variances, the EPA relied on its view that §1326(b)'s "best technology available" standard permits consideration of the technology's costs, 69 Fed. Reg. 41626, and of the relationship between those costs and the environmental benefits produced, id., at 41603. That view governs if it is a reasonable interpretation of the statute--not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984).4 As we have described, §1326(b) instructs the EPA to set standards for cooling water intake structures that reflect "the best technology available for minimizing adverse environmental impact." The Second Circuit took that language to mean the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry. 475 F.3d, at 99-100. That is certainly a plausible interpretation of the statute. The "best" technology--that which is "most advantageous," Webster's New International Dictionary 258 (2d ed. 1953)--may well be the one that produces the most of some good, here a reduction in adverse environmental impact. But "best technology" may also describe the technology that most efficiently produces some good. In common parlance one could certainly use the phrase "best technology" to refer to that which produces a good at the lowest per-unit cost, even if it produces a lesser quantity of that good than other available technologies. Respondents contend that this latter reading is precluded by the statute's use of the phrase "for minimizing adverse environmental impact." Minimizing, they argue, means reducing to the smallest amount possible, and the "best technology available for minimizing adverse environmental impacts," must be the economically feasible technology that achieves the greatest possible reduction in environmental harm. Brief for Respondents Riverkeeper, Inc. etal. 25-26. But "minimize" is a term that admits of degree and is not necessarily used to refer exclusively to the "greatest possible reduction." For example, elsewhere in the Clean Water Act, Congress declared that the procedures implementing the Act "shall encourage the drastic minimization of paperwork and interagency decision procedures." 33 U.S.C. §1251(f). If respondents' definition of the term "minimize" is correct, the statute's use of the modifier "drastic" is superfluous. Other provisions in the Clean Water Act also suggest the agency's interpretation. When Congress wished to mandate the greatest feasible reduction in water pollution, it did so in plain language: The provision governing the discharge of toxic pollutants into the Nation's waters requires the EPA to set "effluent limitations [which] shall require the elimination of discharges of all pollutants if the Administrator finds ... that such elimination is technologically and economically achievable," §1311(b)(2)(A) (emphasis added). See also §1316(a)(1) (mandating "where practicable, a standard [for new point sources] permitting no discharge of pollutants" (emphasis added)). Section 1326(b)'s use of the less ambitious goal of "minimizing adverse environmental impact" suggests, we think, that the agency retains some discretion to determine the extent of reduction that is warranted under the circumstances. That determination could plausibly involve a consideration of the benefits derived from reductions and the costs of achieving them. Cf. 40 CFR §125.83 (defining "minimize" for purposes of the Phase I regulations as "reduc[ing] to the smallest amount, extent, or degree reasonably possible"). It seems to us, therefore, that the phrase "best technology available," even with the added specification "for minimizing adverse environmental impact," does not unambiguously preclude cost-benefit analysis.5 Respondents' alternative (and, alas, also more complex) argument rests upon the structure of the Clean Water Act. The Act provided that during its initial implementation period existing "point sources"--discrete conveyances from which pollutants are or may be discharged, 33 U.S.C. §1362(14)--were subject to "effluent limitations ... which shall require the application of the best practicable control technology currently available." §1311(b)(1)(A) (emphasis added). (We shall call this the "BPT" test.) Following that transition period, the Act initially mandated adoption, by July 1, 1983 (later extended to March 31, 1989), of stricter effluent limitations requiring "application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants." §1311(b)(2)(A) (emphasis added); see EPA v. National Crushed Stone Assn., 449 U.S. 64, 69-70 (1980). (We shall call this the "BATEA" test.) Subsequent amendment limited application of this standard to toxic and nonconventional pollutants, and for the remainder established a (presumably laxer) test of "best conventional-pollutant control technology." §1311(b)(2)(E).6 (We shall call this "BCT.") Finally, §1316 subjected certain categories of new point sources to "the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology." §1316(a)(1) (emphasis added); §1316(b)(1)(B). (We shall call this the "BADT" test.) The provision at issue here, applicable not to effluents but to cooling water intake structures, requires, as we have described, "the best technology available for minimizing adverse environmental impact," §1326(b) (emphasis added). (We shall call this the "BTA" test.) The first four of these tests are elucidated by statutory factor lists that guide their implementation. To take the standards in (presumed) order of increasing stringency, see Crushed Stone, supra, at 69-70: In applying the BPT test the EPA is instructed to consider, among other factors, "the total cost of application of technology in relation to the effluent reduction benefits to be achieved." §1314(b)(1)(B). In applying the BCT test it is instructed to consider "the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." §1314(b)(4)(B) (emphasis added). And in applying the BATEA and BADT tests the EPA is instructed to consider the "cost of achieving such effluent reduction." §§1314(b)(2)(B), 1316(b)(1)(B). There is no such elucidating language applicable to the BTA test at issue here. To facilitate comparison, the texts of these five tests, the clarifying factors applicable to them, and the entities to which they apply are set forth in the Appendix, infra. The Second Circuit, in rejecting the EPA's use of cost-benefit analysis, relied in part on the propositions that (1) cost-benefit analysis is precluded under the BATEA and BADT tests; and (2) that, insofar as the permissibility of cost-benefit analysis is concerned, the BTA test (the one at issue here) is to be treated the same as those two. See 475 F.3d, at 98. It is not obvious to us that the first of these propositions is correct, but we need not pursue that point, since we assuredly do not agree with the second. It is certainly reasonable for the agency to conclude that the BTA test need not be interpreted to permit only what those other two tests permit. Its text is not identical to theirs. It has the relatively modest goal of "minimizing adverse environmental impact" as compared with the BATEA's goal of "eliminating the discharge of all pollutants." And it is unencumbered by specified statutory factors of the sort provided for those other two tests, which omission can reasonably be interpreted to suggest that the EPA is accorded greater discretion in determining its precise content. Respondents and the dissent argue that the mere fact that §1326(b) does not expressly authorize cost-benefit analysis for the BTA test, though it does so for two of the other tests, displays an intent to forbid its use. This surely proves too much. For while it is true that two of the other tests authorize cost-benefit analysis, it is also true that all four of the other tests expressly authorize some consideration of costs. Thus, if respondents' and the dissent's conclusion regarding the import of §1326(b)'s silence is correct, it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the "cost-effectiveness" and "feasibility" analysis that the Second Circuit approved, see supra, at 6, that the dissent would approve, post, at 1-2, and that respondents acknowledge. The inference that respondents and the dissent would draw from the silence is, in any event, implausible, as §1326(b) is silent not only with respect to cost-benefit analysis but with respect to all potentially relevant factors. If silence here implies prohibition, then the EPA could not consider any factors in implementing §1326(b)--an obvious logical impossibility. It is eminently reasonable to conclude that §1326(b)'s silence is meant to convey nothing more than a refusal to tie the agency's hands as to whether cost-benefit analysis should be used, and if so to what degree. Contrary to the dissent's suggestion, see post, at 3-4, our decisions in Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), and American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490 (1981), do not undermine this conclusion. In American Trucking, we held that the text of §109 of the Clean Air Act, "interpreted in its statutory and historical context ... unambiguously bars cost considerations" in setting air quality standards under that provision. 531 U.S., at 471. The relevant "statutory context" included other provisions in the Clean Air Act that expressly authorized consideration of costs, whereas §109 did not. Id., at 467-468. American Trucking thus stands for the rather unremarkable proposition that sometimes statutory silence, when viewed in context, is best interpreted as limiting agency discretion. For the reasons discussed earlier, §1326(b)'s silence cannot bear that interpretation. In American Textile, the Court relied in part on a statute's failure to mention cost-benefit analysis in holding that the relevant agency was not required to engage in cost-benefit analysis in setting certain health and safety standards. 452 U.S., at 510-512. But under Chevron, that an agency is not required to do so does not mean that an agency is not permitted to do so. This extended consideration of the text of §1326(b), and comparison of that with the text and statutory factors applicable to four parallel provisions of the Clean Water Act, lead us to the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. Other arguments may be available to preclude such a rigorous form of cost-benefit analysis as that which was prescribed under the statute's former BPT standard, which required weighing "the total cost of application of technology" against "the ... benefits to be achieved." See, supra, at 10. But that question is not before us. In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits. The agency limited variances from the Phase II "national performance standards" to circumstances where the costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii). In defining the "national performance standards" themselves the EPA assumed the application of technologies whose benefits "approach those estimated" for closed-cycle cooling systems at a fraction of the cost: $389 million per year, 69 Fed. Reg. 41666, as compared with (1) at least $3.5 billion per year to operate compliant closed-cycle cooling systems, id., at 41605 (or $1 billion per year to impose similar requirements on a subset of Phase II facilities, id., at 41606), and (2) significant reduction in the energy output of the altered facilities, id., at 41605. And finally, EPA's assessment of the relatively meager financial benefits of the Phase II regulations that it adopted--reduced impingement and entrainment of 1.4 billion aquatic organisms, id., at 41661, Exh. XII-6, with annualized use-benefits of $83 million, id., at 41662, and non-use benefits of indeterminate value, id., at 41660-41661--when compared to annual costs of $389 million, demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs. While not conclusive, it surely tends to show that the EPA's current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years. See Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 487 (2004); Barnhart v. Walton, 535 U.S. 212, 219-220 (2002). As early as 1977, the agency determined that, while §1326(b) does not require cost-benefit analysis, it is also not reasonable to "interpret Section [1326(b)] as requiring use of technology whose cost is wholly disproportionate to the environmental benefit to be gained." Inre Public Service Co. of New Hampshire, 1 E.A.D. 332, 340 (1977). See also Inre Central Hudson Gas and Electric Corp., EPA Decision of the General Counsel, NPDES Permits, No. 63, pp. 371, 381 (July 29, 1977) ("EPA ultimately must demonstrate that the present value of the cumulative annual cost of modifications to cooling water intake structures is not wholly out of proportion to the magnitude of the estimated environmental gains"); Seacoast Anti-Pollution League v. Costle, 597 F.2d 306, 311 (CA1 1979) (rejecting challenge to an EPA permit decision that was based in part on the agency's determination that further restrictions would be "'wholly disproportionate to any environmental benefit'"). While the EPA's prior "wholly disproportionate" standard may be somewhat different from its current "significantly greater than" standard, there is nothing in the statute that would indicate that the former is a permissible interpretation while the latter is not. Indeed, in its review of the EPA's Phase I regulations, the Second Circuit seemed to recognize that §1326(b) permits some form of cost-benefit analysis. In considering a challenge to the EPA's rejection of dry cooling systems7 as the "best technology available" for Phase I facilities the Second Circuit noted that "while it certainly sounds substantial that dry cooling is 95 percent more effective than closed-cycle cooling, it is undeniably relevant that that difference represents a relatively small improvement over closed-cycle cooling at a very significant cost." Riverkeeper, 358 F.3d, at 194, n. 22. And in the decision below rejecting the use of cost-benefit analysis in the Phase II regulations, the Second Circuit nonetheless interpreted "best technology available" as mandating only those technologies that can "be reasonably borne by the industry." 475 F.3d, at 99. But whether it is "reasonable" to bear a particular cost may well depend on the resulting benefits; if the only relevant factor was the feasibility of the costs, their reasonableness would be irrelevant. In the last analysis, even respondents ultimately recognize that some form of cost-benefit analysis is permissible. They acknowledge that the statute's language is "plainly not so constricted as to require EPA to require industry petitioners to spend billions to save one more fish or plankton." Brief for Respondents Riverkeeper, Inc. etal. 29. This concedes the principle--the permissibility of at least some cost-benefit analysis--and we see no statutory basis for limiting its use to situations where the benefits are de minimis rather than significantly disproportionate. *  *  * We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals' reliance in part on the agency's use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision, 475 F.3d, at 114, was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used, id., at 104-105. We of course express no view on the remaining bases for the Second Circuit's remand which did not depend on the permissibility of cost-benefit analysis. See id., at 108, 110, 113, 115, 117, 120.8 The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Statutory Standard Statutorily Mandated Factors Entities Subject to Regulation BPT: "[E]ffluent limitations ... which shall require the application of the best practicable control technology currently available." 33 U.S.C. §1311(b)(1)(A) (emphasis added). "Factors relating to the assessment of best practicable control technology currently available ... shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved." 33 U.S.C. §1314(b)(1)(B). Existing point sources during the Clean Water Act's initial implementation phase. BCT: "[E]ffluent limitations ... which shall require application of the best conventional pollutant control technology." 33 U.S.C. §1311(b)(2)(E) (emphasis added). "Factors relating to the assessment of best conventional pollutant control technology ... shall include consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." 33 U.S.C. §1314(b)(4)(B). Existing point sources that discharge "conventional pollutants" as defined by the EPA under 33 U.S.C. §1314(a)(4). BATEA: "[E]ffluent limitations ... which ... shall require application of the best available technology economically achievable ... which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants." 33 U.S.C. §1311(b)(2)(A) (emphasis added). "Factors relating to the assessment of best available technology shall take into account ... the cost of achieving such effluent reduction." 33 U.S.C. §1314(b)(2)(B). Existing point sources that discharge toxic pollutants and non-conventional pollutants. BADT: "[A] standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction with the Administrator determines to be achievable through application of the best available demonstrated control technology." 33 U.S.C. §1316(a)(1) (emphasis added). "[T]he Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements." 33 U.S.C. §1316(b)(1)(B). New point sources within the categories of sources identified by the EPA under 33 U.S.C. §1316(b)(1)(A). BTA: "Any standard ... applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. §1326(b). N/A Point sources that operate cooling water intake structures. ENTERGY CORPORATION, PETITIONER 07-588v. RIVERKEEPER, INC., etal. PSEG FOSSIL LLC, etal., PETITIONERS 07-589v. RIVERKEEPER, INC., etal. UTILITY WATER ACT GROUP, PETITIONER 07-597v. RIVERKEEPER, INC., etal. on writs of certiorari to the united states court of appeals for the second circuit [April 1, 2009] Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting. Section 316(b) of the Clean Water Act (CWA), 33 U.S.C. §1326(b), which governs industrial powerplant water intake structures, provides that the Environmental Protection Agency (EPA or Agency) "shall require" that such structures "reflect the best technology available for minimizing adverse environmental impact." The EPA has interpreted that mandate to authorize the use of cost-benefit analysis in promulgating regulations under §316(b). For instance, under the Agency's interpretation, technology that would otherwise qualify as the best available need not be used if its costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii) (2008). Like the Court of Appeals, I am convinced that the EPA has misinterpreted the plain text of §316(b). Unless costs are so high that the best technology is not "available," Congress has decided that they are outweighed by the benefits of minimizing adverse environmental impact. Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use. I As typically performed by the EPA, cost-benefit analysis requires the Agency to first monetize the costs and benefits of a regulation, balance the results, and then choose the regulation with the greatest net benefits. The process is particularly controversial in the environmental context in which a regulation's financial costs are often more obvious and easier to quantify than its environmental benefits. And cost-benefit analysis often, if not always, yields a result that does not maximize environmental protection. For instance, although the EPA estimated that water intake structures kill 3.4 billion fish and shellfish each year,1 see 69 Fed. Reg. 41586, the Agency struggled to calculate the value of the aquatic life that would be protected under its §316(b) regulations, id., at 41661. To compensate, the EPA took a shortcut: Instead of monetizing all aquatic life, the Agency counted only those species that are commercially or recreationally harvested, a tiny slice (1.8 percent to be precise) of all impacted fish and shellfish. This narrow focus in turn skewed the Agency's calculation of benefits. When the EPA attempted to value all aquatic life, the benefits measured $735 million.2 But when the EPA decided to give zero value to the 98.2 percent of fish not commercially or recreationally harvested, the benefits calculation dropped dramatically--to $83 million. Id., at 41666. The Agency acknowledged that its failure to monetize the other 98.2 percent of affected species "'could result in serious misallocation of resources,'" id., at 41660, because its "comparison of complete costs and incomplete benefits does not provide an accurate picture of net benefits to society."3 Because benefits can be more accurately monetized in some industries than in others, Congress typically decides whether it is appropriate for an agency to use cost-benefit analysis in crafting regulations. Indeed, this Court has recognized that "[w]hen Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute." American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 510 (1981). Accordingly, we should not treat a provision's silence as an implicit source of cost-benefit authority, particularly when such authority is elsewhere expressly granted and it has the potential to fundamentally alter an agency's approach to regulation. Congress, we have noted, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions--it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 467-468 (2001). When interpreting statutory silence in the past, we have sought guidance from a statute's other provisions. Evidence that Congress confronted an issue in some parts of a statute, while leaving it unaddressed in others, can demonstrate that Congress meant its silence to be decisive. We concluded as much in American Trucking. In that case, the Court reviewed the EPA's claim that §109 of the Clean Air Act (CAA), 42 U.S.C. §7409(a) (2000 ed.), authorized the Agency to consider implementation costs in setting ambient air quality standards. We read §109, which was silent on the matter, to prohibit Agency reliance on cost considerations. After examining other provisions in which Congress had given the Agency authority to consider costs, the Court "refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted." 531 U.S., at 467. Studied silence, we thus concluded, can be as much a prohibition as an explicit "no." Further motivating the Court in American Trucking was the fact that incorporating implementation costs into the Agency's calculus risked countermanding Congress' decision to protect public health. The cost of implementation, we said, "is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in [the text] had Congress meant it to be considered." Id., at 469. American Trucking's approach should have guided the Court's reading of §316(b). Nowhere in the text of §316(b) does Congress explicitly authorize the use of cost-benefit analysis as it does elsewhere in the CWA. And the use of cost-benefit analysis, like the consideration of implementation costs in American Trucking, "pad[s]" §316(b)'s environmental mandate with tangential economic efficiency concerns. Id., at 468. Yet the majority fails to follow American Trucking despite that case's obvious relevance to our inquiry. II In 1972, Congress amended the CWA to strike a careful balance between the country's energy demands and its desire to protect the environment. The Act required industry to adopt increasingly advanced technology capable of mitigating its detrimental environmental impact. Not all point sources were subject to strict rules at once. Existing plants were granted time to retrofit with the best technology while new plants were required to incorporate such technology as a matter of design. Although Congress realized that technology standards would necessarily put some firms out of business, see EPA v. National Crushed Stone Assn., 449 U.S. 64, 79 (1980), the statute's steady march was toward stricter rules and potentially higher costs. Section §316(b) was an integral part of the statutory scheme. The provision instructs that "[a]ny standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. §1326(b) (2006 ed.) (emphasis added).4 The "best technology available," or "BTA," standard delivers a clear command: To minimize the adverse environmental impact of water intake structures, the EPA must require industry to adopt the best technology available. Based largely on the observation that §316(b)'s text offers little guidance and therefore delegates some amount of gap-filling authority to the EPA, the Court concludes that the Agency has discretion to rely on cost-benefit analysis. See ante, at 11-12. The Court assumes that, by not specifying how the EPA is to determine BTA, Congress intended to give considerable discretion to the EPA to decide how to proceed. Silence, in the majority's view, represents ambiguity and an invitation for the Agency to decide for itself which factors should govern its regulatory approach. The appropriate analysis requires full consideration of the CWA's structure and legislative history to determine whether Congress contemplated cost-benefit analysis and, if so, under what circumstances it directed the EPA to utilize it. This approach reveals that Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others, and that Congress intend to control, not delegate, when cost-benefit analysis should be used. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984).5 Powerful evidence of Congress' decision not to authorize cost-benefit analysis in the BTA standard lies in the series of standards adopted to regulate the outflow, or effluent, from industrial powerplants. Passed at the same time as the BTA standard at issue here, the effluent limitation standards imposed increasingly strict technology requirements on industry. In each effluent limitation provision, Congress distinguished its willingness to allow the EPA to consider costs from its willingness to allow the Agency to conduct a cost-benefit analysis. And to the extent Congress permitted cost-benefit analysis, its use was intended to be temporary and exceptional. The first tier of technology standards applied to existing plants--facilities for which retrofitting would be particularly costly. Congress required these plants to adopt "effluent limitations ... which shall require the application of the best practicable control technology currently available." 33 U.S.C. §1311(b)(1)(A). Because this "best practicable," or "BPT," standard was meant to ease industry's transition to the new technology-based regime, Congress gave BPT two unique features: First, it would be temporary, remaining in effect only until July 1, 1983.6 Second, it specified that the EPA was to conduct a cost-benefit analysis in setting BPT requirements by considering "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application."7 §1314(b)(1)(B). Permitting cost-benefit analysis in BPT gave the EPA the ability to cushion the new technology requirement. For a limited time, a technology with costs that exceeded its benefits would not be considered "best." The second tier of technology standards required existing powerplants to adopt the "best available technology economically achievable" to advance "the national goal of eliminating the discharge of all pollutants." §1311(b)(2)(A). In setting this "best available technology," or "BAT,"8 standard, Congress gave the EPA a notably different command for deciding what technology would qualify as "best": The EPA was to consider, among other factors, "the cost of achieving such effluent reduction," but Congress did not grant it authority to balance costs with the benefits of stricter regulation. §1314(b)(2)(B). Indeed, in Crushed Stone this Court explained that the difference between BPT and BAT was the existence of cost-benefit authority in the first and the absence of that authority in the second. See 449 U.S., at 71 ("Similar directions are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits"). The BAT standard's legislative history strongly supports the view that Congress purposefully withheld cost-benefit authority for this tier of regulation. See ibid., n.10. The House of Representatives and the Senate split over the role cost-benefit analysis would play in the BAT provision. The House favored the tool, see H.R. Rep. No. 92-911, p. 107 (1972), 1 Leg. Hist. 794, while the Senate rejected it, see 2 id., at 1183; id., at 1132. The Senate view ultimately prevailed in the final legislation, resulting in a BAT standard that was "not subject to any test of cost in relation to effluent reduction benefits or any form of cost/benefit analysis." 3 Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Federal Water Pollution Control Act (Committee Print compiled for the Senate Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 427 (1978). The third and strictest regulatory tier was reserved for new point sources--facilities that could incorporate technology improvements into their initial design. These new facilities were required to adopt "the best available demonstrated control technology," or "BADT," which Congress described as "a standard ... which reflect[s] the greatest degree of effluent reduction." §1316(a)(1). In administering BADT, Congress directed the EPA to consider "the cost of achieving such effluent reduction." §1316(b)(1)(B). But because BADT was meant to be the most stringent standard of all, Congress made no mention of cost-benefit analysis. Again, the silence was intentional. The House's version of BADT originally contained an exemption for point sources for which "the economic, social, and environmental costs bear no reasonable relationship to the economic, social, and environmental benefit to be obtained." 1 Leg. Hist. 798. That this exemption did not appear in the final legislation demonstrates that Congress considered, and rejected, reliance on cost-benefit analysis for BADT. It is in this light that the BTA standard regulating water intake structures must be viewed. The use of cost-benefit analysis was a critical component of the CWA's structure and a key concern in the legislative process. We should therefore conclude that Congress intended to forbid cost-benefit analysis in one provision of the Act in which it was silent on the matter when it expressly authorized its use in another.9 See, e.g., Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. ___, ___ (2008) (slip op., at 7-8); Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another ... , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). This is particularly true given Congress' decision that cost-benefit analysis would play a temporary and exceptional role in the CWA to help existing plants transition to the Act's ambitious environmental standards.10 Allowing cost-benefit analysis in the BTA standard, a permanent mandate applicable to all powerplants, serves no such purpose and instead fundamentally weakens the provision's mandate.11 Accordingly, I would hold that the EPA is without authority to perform cost-benefit analysis in setting BTA standards. To the extent the EPA relied on cost-benefit analysis in establishing its BTA regulations,12 that action was contrary to law, for Congress directly foreclosed such reliance in the statute itself.13 Chevron, 467 U.S., at 843. Because we granted certiorari to decide only whether the EPA has authority to conduct cost-benefit analysis, there is no need to define the universe of considerations upon which the EPA can properly rely in administering the BTA standard. I would leave it to the Agency to decide how to proceed in the first instance. III Because the Court unsettles the scheme Congress established, I respectfully dissent. ENTERGY CORPORATION, PETITIONER 07-588v. RIVERKEEPER, INC., etal. PSEG FOSSIL LLC, etal., PETITIONERS 07-589v. RIVERKEEPER, INC., etal. UTILITY WATER ACT GROUP, PETITIONER 07-597v. RIVERKEEPER, INC., etal. on writs of certiorari to the united states court of appeals for the second circuit [April 1, 2009] Justice Breyer, concurring in part and dissenting in part. I agree with the Court that the relevant statutory language authorizes the Environmental Protection Agency (EPA) to compare costs and benefits. Ante, at 7-13. Nonetheless the drafting history and legislative history of related provisions, Pub. L. 92-500, §§301, 304, 86 Stat. 844, 850, as amended, 33 U.S.C. §§1311, 1314, makes clear that those who sponsored the legislation intended the law's text to be read as restricting, though not forbidding, the use of cost-benefit comparisons. And I would apply that text accordingly. I Section 301 provides that, not later than 1977, effluent limitations for point sources shall require the application of "best practicable control technology," §301(b)(1)(A), 86 Stat. 845 (emphasis added); and that, not later than 1983 (later extended to 1989), effluent limitations for categories and classes of point sources shall require application of the "best available technology economically achievable," §301(b)(2)(A), ibid. (emphasis added). Section 304(b), in turn, identifies the factors that the Agency shall take into account in determining (1) "best practicable control technology" and (2) "best available technology." 86 Stat. 851 (emphasis added). With respect to the first, the statute provides that the factors taken into account by the Agency "shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application ... and such other factors as the Administrator deems appropriate." §304(b)(1)(B), ibid. With respect to the second, the statute says that the Agency "shall take into account . . . the cost of achieving such effluent reduction" and "such other factors as the Administrator deems appropriate." §304(b)(2)(B), ibid. The drafting history makes clear that the statute reflects a compromise. In the House version of the legislation, the Agency was to consider "the cost and the economic, social, and environmental impact of achieving such effluent reduction" when determining both "best practicable" and "best available" technology. H.R. 11896, 92d Cong., 2d Sess., §§304(b)(1)(B), (b)(2)(B) (1972) (as reported from committee). The House Report explained that the "best available technology" standard was needed--as opposed to mandating the elimination of discharge of pollutants--because "the difference in the cost of 100 percent elimination of pollutants as compared to the cost of removal of 97-99 percent of the pollutants in an effluent can far exceed any reasonable benefit to be achieved. In most cases, the cost of removal of the last few percentage points increases expo[n]entially." H.R. Rep. No. 92-911, p. 103 (1972). In the Senate version, the Agency was to consider "the cost of achieving such effluent reduction" when determining both "best practicable" and "best available" technology. S. 2770, 92d Cong., 1st Sess., §§304(b)(1)(B), (b)(2)(B) (1971) (as reported from committee). The Senate Report explains that "the technology must be available at a cost ... which the Administrator determines to be reasonable." S.Rep. No. 92-414, p. 52 (1971) (hereinafter S.Rep.). But it said nothing about comparing costs and benefits. The final statute reflects a modification of the House's language with respect to "best practicable," and an adoption of the Senate's language with respect to "best available." S. Conf. Rep. No. 92-1236, pp. 124-125 (1972). The final statute does not require the Agency to compare costs to benefits when determining "best available technology," but neither does it expressly forbid such a comparison. The strongest evidence in the legislative history supporting the respondents' position--namely, that Congress intended to forbid comparisons of costs and benefits when determining the "best available technology"--can be found in a written discussion of the Act's provisions distributed to the Senate by Senator Edmund Muskie, the Act's principal sponsor, when he submitted the Conference Report for the Senate's consideration. 118 Cong. Rec. 33693 (1972). The relevant part of that discussion points out that, as to "best practicable technology," the statute requires application of a "balancing test between total cost and effluent reduction benefits." Id., at 33696; see §304(b)(1)(B). But as to "best available technology," it states: "While cost should be a factor in the Administrator's judgment, no balancing test will be required." Ibid.; see §304(b)(2)(B). And Senator Muskie's discussion later speaks of the agency "evaluat[ing] ... what needs to be done" to eliminate pollutant discharge and "what is achievable," both "without regard to cost." Ibid. As this language suggests, the Act's sponsors had reasons for minimizing the EPA's investigation of, and reliance upon, cost-benefit comparisons. The preparation of formal cost-benefit analyses can take too much time, thereby delaying regulation. And the sponsors feared that such analyses would emphasize easily quantifiable factors over more qualitative factors (particularly environmental factors, for example, the value of preserving non-marketable species of fish). See S.Rep., at 47. Above all, they hoped that minimizing the use of cost-benefit comparisons would force the development of cheaper control technologies; and doing so, whatever the initial inefficiencies, would eventually mean cheaper, more effective cleanup. See id., at 50-51. Nonetheless, neither the sponsors' language nor the underlying rationale requires the Act to be read in a way that would forbid cost-benefit comparisons. Any such total prohibition would be difficult to enforce, for every real choice requires a decisionmaker to weigh advantages against disadvantages, and disadvantages can be seen in terms of (often quantifiable) costs. Moreover, an absolute prohibition would bring about irrational results. As the respondents themselves say, it would make no sense to require plants to "spend billions to save one more fish or plankton." Brief for Respondents Riverkeeper, Inc., etal. 29. That is so even if the industry might somehow afford those billions. And it is particularly so in an age of limited resources available to deal with grave environmental problems, where too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems. Thus Senator Muskie used nuanced language, which one can read as leaving to the Agency a degree of authority to make cost-benefit comparisons in a manner that is sensitive both to the need for such comparisons and to the concerns that the law's sponsors expressed. The relevant statement begins by listing various factors that the statute requires the Administrator to take into account when applying the phrase "practicable" to "classes and categories." 118 Cong. Rec. 33696. It states that, when doing so, the Administrator must apply (as the statute specifies) a "balancing test between total cost and effluent reduction benefits." Ibid. At the same time, it seeks to reduce the likelihood that the Administrator will place too much weight upon high costs by adding that the balancing test "is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving" a "marginal level of reduction." Ibid. Senator Muskie's statement then considers the "different test" that the statute requires the Administrator to apply when determining the "'best available'" technology. Ibid. (emphasis added). Under that test, the Administrator "may consider a broader range of technological alternatives." Ibid. And in determining what is "'best available' for a category or class, the Administrator is expected to apply the same principles involved in making the determination of 'best practicable' ... except as to cost-benefit analysis." Ibid. (emphasis added). That is, "[w]hile cost should be a factor . . . no balancing test will be required." Ibid. (emphasis added). Rather, "[t]he Administrator will be bound by a test of reasonableness." Ibid. (emphasis added). The statement adds that the "'best available'" standard "is intended to reflect the need to press toward increasingly higher levels of control." Ibid. (emphasis added). And "the reasonableness of what is 'economically achievable' should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology--without regard to cost." Ibid. (emphasis added). I believe, as I said, that this language is deliberately nuanced. The statement says that where the statute uses the term "best practicable," the statute requires comparisons of costs and benefits; but where the statute uses the term "best available," such comparisons are not "required." Ibid. (emphasis added). Senator Muskie does not say that all efforts to compare costs and benefits are forbidden. Moreover, the statement points out that where the statute uses the term "best available," the Administrator "will be bound by a test of reasonableness." Ibid. (emphasis added). It adds that the Administrator should apply this test in a way that reflects its ideal objective, moving as closely as is technologically possible to the elimination of pollution. It thereby says the Administrator should consider, i.e., take into account, how much pollution would still remain if the best available technology were to be applied everywhere--"without regard to cost." Ibid. It does not say that the Administrator must set the standard based solely on the result of that determination. (It would be difficult to reconcile the alternative, more absolute reading of this language with the Senator's earlier "test of reasonableness.") I say that one may, not that one must, read Senator Muskie's statement this way. But to read it differently would put the Agency in conflict with the test of reasonableness by threatening to impose massive costs far in excess of any benefit. For 30 years the EPA has read the statute and its history in this way. The EPA has thought that it would not be "reasonable to interpret Section 316(b) as requiring use of technology whose cost is wholly disproportionate to the environmental benefit to be gained." Inre Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), 1 E. A. D. 332, 340 (1977), remanded on other grounds, Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (CA1 1978) (emphasis added); see also Inre Central Hudson Gas & Elec. Corp., EPA Decision of the General Counsel, NPDES Permits, No. 63, p. 371 (July 29, 1977) (also applying a "wholly disproportionate" test); In re Pub. Serv. Co. of N.H., 1 E. A. D. 455 (1978) (same). "[T]his Court will normally accord particular deference to an agency interpretation of 'longstanding' duration." Barnhart v. Walton, 535 U.S. 212, 220 (2002). And for the last 30 years, the EPA has given the statute a permissive reading without suggesting that in doing so it was ignoring or thwarting the intent of the Congress that wrote the statute. The EPA's reading of the statute would seem to permit it to describe environmental benefits in non-monetized terms and to evaluate both costs and benefits in accordance with its expert judgment and scientific knowledge. The Agency can thereby avoid lengthy formal cost-benefit proceedings and futile attempts at comprehensive monetization, see 69 Fed. Reg. 41661-41662; take account of Congress' technology-forcing objectives; and still prevent results that are absurd or unreasonable in light of extreme disparities between costs and benefits. This approach, in my view, rests upon a "reasonable interpretation" of the statute--legislative history included. Hence it is lawful. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Most of what the majority says is consistent with this view, and to that extent I agree with its opinion. II The cases before us, however, present an additional problem. We here consider a rule that permits variances from national standards if a facility demonstrates that its costs would be "significantly greater than the benefits of complying." 40 CFR §125.94(a)(5)(ii) (2008). The words "significantly greater" differ from the words the EPA has traditionally used to describe its standard, namely, "wholly disproportionate." Perhaps the EPA does not mean to make much of that difference. But if it means the new words to set forth a new and different test, the EPA must adequately explain why it has changed its standard. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42-43 (1983); National Cable & Telecommunications Assn. v. Brand X Internet, 545 U.S. 967, 981 (2005); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 524, n. 3 (1994) (Thomas, J., dissenting). I am not convinced the EPA has successfully explained the basis for the change. It has referred to the fact that existing facilities have less flexibility than new facilities with respect to installing new technologies, and it has pointed to special, energy-related impacts of regulation. 68 Fed. Reg. 13541 (2003) (proposed rule). But it has not explained why the traditional "wholly disproportionate" standard cannot do the job now, when the EPA has used that standard (for existing facilities and otherwise) with apparent success in the past. See, e.g., Central Hudson, supra. Consequently, like the majority, I would remand these cases to the Court of Appeals. But unlike the majority I would permit that court to remand the cases to the EPA so that the EPA can either apply its traditional "wholly disproportionate" standard or provide an adequately reasoned explanation for the change. FOOTNOTESFootnote *Together with No. 07-589, PSEG Fossil LLC etal. v. Riverkeeper, Inc., etal., and No. 07-597, Utility Water Act Group v. Riverkeeper, Inc., etal., also on certiorari to the same court. FOOTNOTESFootnote 1The EPA and its Administrator appeared as respondents in support of petitioners. See Brief for Federal Parties as Respondents Supporting Petitioners. References to "respondents" throughout the opinion refer only to those parties challenging the EPA rules at issue in these cases. Footnote 2Closed-cycle cooling systems recirculate the water used to cool the facility, and consequently extract less water from the adjacent waterway, proportionately reducing impingement and entrainment. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 182, n.5 (CA2 2004); 69 Fed. Reg. 41601, and n. 44 (2004). Footnote 3The EPA has also adopted Phase III rules for facilities not subject to the Phase I and Phase II regulations. 71 Fed. Reg. 35006 (2006). A challenge to those regulations is currently before the Fifth Circuit, where proceedings have been stayed pending disposition of these cases. See ConocoPhillips Co. v. EPA, No. 06-60662. Footnote 4The dissent finds it "puzzling" that we invoke this proposition (that a reasonable agency interpretation prevails) at the "outset," omitting the supposedly prior inquiry of "'whether Congress has directly spoken to the precise question at issue.'" Post, at 6, n.5 (opinion of Stevens, J.) (quoting Chevron, 467 U.S., at 842). But surely if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable. What is truly "puzzling" is the dissent's accompanying charge that the Court's failure to conduct the Chevron step-one inquiry at the outset "reflects [its] reluctance to consider the possibility ... that Congress' silence may have meant to foreclose cost-benefit analysis." Post, at 6, n.5. Our discussion of that issue, infra, at 11, speaks for itself. Footnote 5Respondents concede that the term "available" is ambiguous, as it could mean either technologically feasible or economically feasible. But any ambiguity in the term "available" is largely irrelevant. Regardless of the criteria that render a technology "available," the EPA would still have to determine which available technology is the "best" one. And as discussed above, that determination may well involve consideration of the technology's relative costs and benefits. Footnote 6The statute does not contain a hyphen between the words "conventional" and "pollutant." "Conventional pollutant" is a statutory term, however, see 33 U.S.C. §1314(a)(4), and it is clear that in §1311(b)(2)(E) the adjective modifies "pollutant" rather than "control technology." The hyphen makes that clear. Footnote 7Dry cooling systems use air drafts to remove heat, and accordingly remove little or no water from surrounding water sources. See 66 Fed. Reg. 65282 (2001). Footnote 8Justice Breyer would remand for the additional reason of what he regards as the agency's inadequate explanation of the change in its criterion for variances--from a relationship of costs to benefits that is "'wholly disproportionate'" to one that is "'significantly greater.'" Post, at 7-8 (opinion concurring in part and dissenting in part). That question can have no bearing upon whether the EPA can use cost-benefit analysis, which is the only question presented here. It seems to us, in any case, that the EPA's explanation was ample. It explained that the "wholly out of proportion" standard was inappropriate for the existing facilities subject to the Phase II rules because those facilities lack "the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities," and because "economically impracticable impacts on energy prices, production costs, and energy production ... could occur if large numbers of Phase II existing facilities incurred costs that were more than 'significantly greater' than but not 'wholly out of proportion' to the costs in the EPA's record." 68 Fed. Reg. 13541 (2003). FOOTNOTESFootnote 1To produce energy, industrial powerplants withdraw billions of gallons of water daily from our Nation's waterways. Thermoelectric powerplants alone demand 39 percent of all freshwater withdrawn nationwide. See Dept. of Energy, Addressing the Critical Link Between Fossil Energy and Water 2 (Oct. 2005), http:// www.netl.doe.gov/technologies/coalpower/ewr/pubs/NETL_Water_Paper_Final_Oct.2005.pdf (all Internet materials as visited Mar. 18, 2009, and available in Clerk of Court's case file). The fish and shellfish are killed by "impingement" or "entrainment." Impingement occurs when aquatic organisms are trapped against the screens and grills of water intake structures. Entrainment occurs when these organisms are drawn into the intake structures. See Riverkeeper, Inc. v. EPA, 475 F.3d 83, 89 (CA2 2007); 69 Fed. Reg. 41586 (2004). Footnote 2EPA, Economic and Benefits Analysis for the Proposed Section 316(b) Phase II Existing Facilities Rule, p. D1-4 (EPA-821-R-02-001, Feb. 2002), http://www.epa.gov/waterscience/316b/phase2/econbenefits. Footnote 3EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, p. D1-5 (EPA-821-R-04-005, Feb. 2004), http://www.epa.gov/waterscience/316b/phase2/econbenefits/final. htm. Footnote 4The two cross-referenced provisions, §§1311 and 1316, also establish "best technology" standards, the first applicable to existing point sources and the second to new facilities. The reference to these provisions in §316(b) merely requires any rule promulgated under those provisions, when applied to a point source with a water intake structure, to incorporate §316(b) standards. Footnote 5The majority announces at the outset that the EPA's reading of the BTA standard "governs if it is a reasonable interpretation of the statute--not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts." Ante, at 7. This observation is puzzling in light of the commonly understood practice that, as a first step, we ask "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S., at 842. Only later, if Congress' intent is not clear, do we consider the reasonableness of the agency's action. Id., at 843. Assuming ambiguity and moving to the second step reflects the Court's reluctance to consider the possibility, which it later laments is "more complex," ante, at 9, that Congress' silence may have meant to foreclose cost-benefit analysis. Footnote 6Congress later extended the deadline to March 31, 1989. Footnote 7Senator Muskie, the Senate sponsor of the legislation, described the cost-benefit analysis permitted under BPT as decidedly narrow, asserting that "[t]he balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources." 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 170 (1973) (hereinafter Leg. Hist.) Footnote 8Although the majority calls this "BATEA," the parties refer to the provision as "BAT," and for simplicity, so will I. Footnote 9The Court argues that, if silence in §316(b) signals the prohibition of cost-benefit analysis, it must also foreclose the consideration of all other potentially relevant discretionary factors in setting BTA standards. Ante, at 12. This all-or-nothing reasoning rests on the deeply flawed assumption that Congress treated cost-benefit analysis as just one among many factors upon which the EPA could potentially rely to establish BTA. Yet, as explained above, the structure and legislative history of the CWA demonstrate that Congress viewed cost-benefit analysis with special skepticism and controlled its use accordingly. The Court's assumption of equivalence is thus plainly incorrect. Properly read, Congress' silence in §316(b) forbids reliance on the cost-benefit tool but does not foreclose reliance on all other considerations, such as a determination whether a technology is so costly that it is not "available" for industry to adopt. Footnote 10In 1977, Congress established an additional technology-based standard, commonly referred to as "best conventional pollutant control technology," or "BCT," to govern conventional pollutants previously covered by the BAT standard. See 33 U.S.C. §1311(b)(2)(E). The BCT standard required the EPA to consider, among other factors, "the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." §1314(b)(4)(B). That Congress expressly authorized cost-benefit analysis in BCT further confirms that Congress treated cost-benefit analysis as exceptional and reserved for itself the authority to decide when it would be used in the Act. Footnote 11The Court attempts to cabin its holding by suggesting that a "rigorous form of cost-benefit analysis," such as the form "prescribed under the statute's former BPT standard," may not be permitted for setting BTA regulations. Ante, at 13. Thus the Court has effectively instructed the Agency that it can perform a cost-benefit analysis so long as it does not resemble the kind of cost-benefit analysis Congress elsewhere authorized in the CWA. The majority's suggested limit on the Agency's discretion can only be read as a concession that cost-benefit analysis, as typically performed, may be inconsistent with the BTA mandate. Footnote 12The "national performance standards" the EPA adopted were shaped by economic efficiency concerns at the expense of finding the technology that best minimizes adverse environmental impact. In its final rulemaking, the Agency declined to require industrial plants to adopt closed-cycle cooling technology, which by recirculating cooling water requires less water to be withdrawn and thus fewer aquatic organisms to be killed. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 182, n.5 (CA2 2004); 69 Fed. Reg. 41601, and n.44. This the Agency decided despite its acknowledgment that "closed-cycle, recirculating cooling systems ... can reduce mortality from impingement by up to 98 percent and entrainment by up to 98 percent." Id., at 41601. The EPA instead permitted individual plants to resort to a "suite" of options so long as the method used reduced impingement and entrainment by the more modest amount of 80 and 60 percent, respectively. See 40 CFR §125.94(b). The Agency also permitted individual plants to obtain a site-specific variance from the national performance standards if they could prove (1) that compliance costs would be "significantly greater than" those the Agency considered when establishing the standards, or (2) that compliance costs "would be significantly greater than the benefits of complying with the applicable performance standards," §125.94(a)(5). Footnote 13Thus, the Agency's past reliance on a "wholly disproportionate" standard, a mild variant of cost-benefit analysis, is irrelevant. See ante, at 14. Because "Congress has directly spoken to the precise question at issue," Chevron, 467 U.S., at 842, longstanding yet impermissible agency practice cannot ripen into permissible agency practice.

conservative

organization

economic_activity

1957-048-01

United States Supreme Court LABOR BOARD v. MINE WORKERS(1958) No. 64 Argued: January 6, 1958Decided: February 3, 1958 The National Labor Relations Board found that an employer had committed an unfair labor practice by assisting a union to defeat the efforts of a rival union to organize the employer's workers, but that the assisted union was not dominated by the employer. It ordered the employer to post certain notices and to withdraw and withhold recognition from the assisted union until it received the Board's certification as the exclusive bargaining representative of the employees. The assisted union was not eligible for such certification, because it was not in compliance with 9 (f), (g) and (h) of the National Labor Relations Act, as amended. The Court of Appeals modified the Board's order so that the employer would be free to recognize the assisted union not only when certified by the Board but, alternatively, when it "shall have been freely chosen as [their representative] by a majority of the employees after all effects of unfair labor practices have been eliminated." It also struck from the Board's notice requirement certain references to the rival union. Held: 1. In the circumstances of this case, the Board's order is not appropriate or adapted to the situation calling for redress, and it constitutes an abuse of the Board's discretionary power under 10 (c). Pp. 458-463. (a) The certification requirement, in these circumstances, has the effect of disestablishment and thus defeats the statutory rights of the employees, because this assisted but undominated union can never obtain certification so long as it remains out of compliance with 9 (f), (g) and (h). Pp. 460-461. (b) The Board is not powerless to effect a remedy in this case which would properly reconcile the objectives of eliminating improper employer interference and preserving the employees' full choice of a bargaining representative, since 9 (f), (g) and (h) [355 U.S. 453, 454] are not a barrier to conduct by the Board of an election not followed by certification, or to the making of an arrangement with another appropriate agency, state or federal, for the conduct of an election under conditions prescribed by the Board. Pp. 461-462. (c) To dispense with a certification in the case of a noncomplying assisted union, while requiring a certification in the case of a complying union, would not negative the policy and intent of 9 (f), (g) and (h), since Congress did not make the filing required by those subsections compulsory or a condition precedent to the right of a noncomplying union to be recognized as the exclusive representative of the employees. Pp. 462-463. 2. The modifications of the Board's cease-and-desist order made by the Court of Appeals go beyond permissible limits of judicial review under 10 (f) and cannot be sustained. Pp. 463-464. (a) The Court's alternative to Board certification dispenses with the necessity of an election and can be interpreted to leave to the offending employer and the assisted union the decision when the effect of the unfair labor practice has been eliminated and the employees have regained their freedom of action. P. 463. (b) The Court's rewriting of the notice to be posted was improper insofar as it deleted references to the rival union, because no objection to the notice in this respect was ever raised by the parties before the Board. Pp. 463-464. 3. The orderly administration of the Act and due regard for the respective functions of the Board and the reviewing courts require that the judgment of the Court of Appeals be vacated with instructions to remand the case to the Board for further proceedings consistent with this opinion. P. 464. 99 U.S. App. D.C. 104, 237 F.2d 585, judgment vacated with instructions to remand the case to the Board. Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard and Alice Andrews. Crampton Harris argued the cause for District 50, United Mine Workers of America, respondent. With him on the brief were Yelverton Cowherd and Alfred D. Treherne. [355 U.S. 453, 455] MR. JUSTICE BRENNAN delivered the opinion of the Court. The National Labor Relations Board found that Bowman Transportation, Inc., committed unfair labor practices by assisting District 50, United Mine Workers, as a means of defeating the efforts of a Teamsters Local to organize its workers. 1 The cease-and-desist order which issued was in the standard form directing the company to withdraw and withhold recognition from District 50 unless and until it received the Board's certification as the exclusive representative of the employees. 112 N. L. R. B. 387. 2 But the United Mine Workers is not in compliance with 9 (f), (g), and (h), added by the Taft-Hartley amendments to the National Labor Relations Act, 61 Stat. 143, 29 U.S.C. 159 (f), (g), (h). 3 [355 U.S. 453, 456] It is therefore not eligible for a Board certification and in consequence the Bowman employees may never have an opportunity to select District 50 as their representative. The Board denied the United Mine Workers' application to delete the requirement for a Board certification. 113 N. L. R. B. 786. The question arises whether the requirement for a Board certification in these circumstances exceeds the Board's discretionary power under 10 (c), 29 U.S.C. 160 (c), to fashion remedies to dissipate the effects of an employer's unfair labor practices in assisting a union. The union petitioned the Court of Appeals for the District of Columbia under 10 (f), 29 U.S.C. 160 (f), which authorizes a Court of Appeals to "enter a decree enforcing, modifying, and enforcing as so modified, [355 U.S. 453, 457] or setting aside in whole or in part the order of the Board . . . ." The Court of Appeals, 99 U.S. App. D.C. 104, 237 F.2d 585, did not delete the provisions for Board certification but modified the order so that the company would be free to recognize District 50 not only when certified by the Board but, alternatively, when District 50 "shall have been freely chosen as such [representative] by a majority of the employees after all effects of unfair labor practices have been eliminated." 99 U.S. App. D.C., at 107, 237 F.2d, at 588. The Board's order also required the company to post for at least 60 days a notice prepared by the Board. In the notice the company would state to its employees that it would not discourage membership in, or interrogate the employees concerning their activities on behalf of, ". . . Teamsters . . . Local No. 612, or any other labor organization . . .," and, further, that the company would ". . . withhold all recognition from District 50 . . . unless and until said organization shall have been certified as such representative by the . . . Board." 112 N. L. R. B. 387, 391. The parties raised no objection to the notice either before the Board or in the Court of Appeals. However, the Court of Appeals on its own motion struck from the notice the references to the Teamsters Local, stating its view that "references to that union in the Board's form of notice are susceptible of being construed as" indicating that the Board "prefers Teamsters." 99 U.S. App. D.C., at 108, 237 F.2d, at 589. The court also added, to the paragraph in the notice stating that the company would withhold recognition from District 50 until the union received a Board certification, the alternative "or [until District 50] shall have been selected as such [representative] by a majority of our employees at a time at least 60 days later than the date of this notice." 99 U.S. App. D.C., at 109, 237 F.2d, at 590. [355 U.S. 453, 458] Because important questions of the administration of the Act were raised, we granted certiorari on the Board's petition. 352 U.S. 999 . The Board's order was fashioned under 10 (c), 29 U.S.C. 160 (c), which vests remedial power in the Board to redress unfair labor practices by "an order requiring such person [committing the unfair labor practice] to cease and desist from such unfair labor practice, and to take such affirmative action . . . as will effectuate the policies of this Act . . . ." The Board's discretionary authority to fashion remedies to purge unfair labor practices necessarily has a broad reach. Labor Board v. Link-Belt Co., 311 U.S. 584, 600 . But the power is not limitless; it is contained by the requirement that the remedy shall be "appropriate," Labor Board v. Bradford Dyeing Assn., 310 U.S. 318 , and shall "be adapted to the situation which calls for redress," Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348 . The Board may not apply "a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act." Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 349 . The Board's provision for a Board certification must therefore be examined in the light of its appropriateness in the circumstances of this case. In formulating remedies for unfair labor practices involving interference by employers with their employees' freedom of choice of a representative, the Board has always distinguished the remedy appropriate in the case of a union dominated by an employer from the remedy appropriate in the case of a union assisted but undominated by an employer. In the case of a dominated union the Board usually orders the complete disestablishment of the union so that it can never be certified by the Board: This Court has sustained such orders. Labor Board v. [355 U.S. 453, 459] Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 ; Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241 . On the other hand, in the case of the assisted but undominated union, the Board has consistently directed the employer to withhold recognition from the assisted union until the union receives a Board certification. The basis for the distinction is that, in the Board's judgment, the free choice by employees of an agent capable of acting as their true representative, in the case of a dominated union, is improbable under any circumstances, while the free choice of an assisted but undominated union, capable of acting as their true representative, is a reasonable possibility after the effects of the employer's unfair labor practices have been dissipated. See Labor Board v. Wemyss, 212 F.2d 465, 471, 472. The reason for the Board's certification requirement is to invoke the normal electoral processes by which a free choice of representatives is assured. The Board's opinion in this case states that ". . . the Board has, since its earliest days, recognized that the policies of the Act could best be effectuated in cases involving violations of Section 8 (a) (2) by directing the offending employers to withhold the preferred treatment afforded to the labor organizations involved until the effect of the unfair labor practices had been dissipated and the majority status of such unions had been established in an atmosphere free of restraint and coercion." 113 N. L. R. B. 786, 787. Again, ". . . in the case of an assisted but undominated labor organization, the Board has required the offending employer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure the affected [355 U.S. 453, 460] employees that their statutory right to freely choose a bargaining representative shall be preserved by conducting an election under conditions which will render such a choice possible." 113 N. L. R. B. 786, 788. It is thus clear that the most significant element of the remedy is not the formality of certification but an election, after a lapse of time and under proper safeguards, by which employees in "the privacy and independence of the voting booth," Brooks v. Labor Board, 348 U.S. 96, 99 -100, may freely register their choice whether or not they desire to be represented by the assisted union. In this case of a noncomplying union, however, requiring the formality of Board certification in addition to an election has the same effect as disestablishment. This is because District 50 can never be certified by the Board so long as the United Mine Workers remain out of compliance with 9 (f), (g), and (h). But disestablishment has been applied by the Board and upheld by the courts only in the case of a dominated union, where a free choice of a truly representative union is improbable under any circumstances, and therefore where an abridgment of the statutory right of employees does not result. District 50 was found by the Board to be an assisted but not a dominated union, so that a free choice of District 50 by Bowman's employees is a reasonable possibility. Therefore the certification requirement here misapplies the Board's own policy by actually defeating the statutory rights of Bowman's employees. The Board reasoned that since this Court has sustained its power under 10 (c) "to dissipate the effect of an unfair labor practice by completely removing a dominated union . . ., the Board manifestly has the statutory power to impose the lesser sanction of certification in the case of an assisted union . . . ." 113 N. L. R. B. 786, 788. Even if we grant the premise that the Board may [355 U.S. 453, 461] remove a dominated union, it does not follow that the Board may remove this merely assisted union. Certification under the circumstances of this case is not the "lesser sanction" but is substantially the same as removal. Unlike an assisted union, a dominated union is deemed inherently incapable of ever fairly representing its members. Labor Board v. Pennsylvania Greyhound Lines, Inc., supra, at 270, 271; Labor Board v. Newport News Shipbuilding & Dry Dock Co., supra, at 250. We do not think, however, that the Board lacks authority to effect a remedy in this case which would properly reconcile the objectives of eliminating improper employer interference and preserving the employees' full choice of a bargaining representative. The prohibitions of 9 (f) and (h) against investigation of representatives, the requirement of 9 (c) of Board-conducted elections connected with such investigations, and the prohibition of 9 (g) against certification of a noncomplying union, are concerned not with remedial orders under 10 (c) but with questions of representation and unfair labor practices "raised by a labor organization." The single objective of 9 (f), (g), and (h) was "to stop the use of the Labor Board" by noncomplying unions. Labor Board v. Dant, 344 U.S. 375, 385 . These subsections contain nothing compelling the Board to insist upon a Board certification and thus to deny the employees the right at an election held under proper safeguards to select the noncomplying assisted union for their representative. Nothing in the subsections, for example, is a barrier to the conduct by the Board of an election not followed by a certification, or to the making of an arrangement with another appropriate agency, state or federal, for the conduct of the election under conditions prescribed by the Board. Clearly an election under such circumstances will also achieve the Board's prime objective in these cases, viz., to "demonstrate that . . . [the assisted union's] right to [355 U.S. 453, 462] be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion." 113 N. L. R. B. 786, 788. Indeed, in its brief, the Board impliedly admits the irrelevance of the formality of certification to the effectiveness of the fashioned remedy, stating that ". . . if that view [of certification] is rejected, the Board may perhaps devise other measures which will enable it to make certain that the employees' choice of bargaining representative is in fact made in an atmosphere free of restraint and coercion . . . ." In a footnote the Board suggests such an alternative: ". . . [T]he Board might conduct an election among the employees and certify the union if it wins the election provided it is in compliance but otherwise certify only the arithmetical results. . . ." The Board's opinion also states that to dispense with a certification in the case of a noncomplying assisted union, while requiring a certification in the case of a complying union, "would negative the policy and intent of Section 9 (f), (g), and (h) of the Act." 113 N. L. R. B. 786, 790. But this misinterprets the scope of those provisions. "Subsections (f), (g) and (h) of 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance." United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 73 . Congress did not in 9 (f), (g), and (h) make the filing required by those subsections compulsory or a condition precedent to the right of a noncomplying union to be recognized as the exclusive representative of the employees. United Mine Workers v. Arkansas Oak Flooring Co., supra. Similarly, the Board cannot, through the requirement of a Board certification, make noncompliance a reason for denying the employees the right to choose the [355 U.S. 453, 463] assisted union at an election which can readily serve its designed purpose without such certification. Finally, we do not believe that the issuance of an order in the case of a noncomplying assisted union different from the form of order consistently used in cases of complying assisted unions extends "preferred treatment" to the noncomplying union. What it does in fact is to give the noncomplying union substantially the same treatment as a complying union instead of subjecting it to disabilities not intended by Congress as a result of noncompliance. The Board's order is therefore not appropriate or adapted to the situation calling for redress and constitutes an abuse of the Board's discretionary power. However, the modifications of the cease-and-desist order made by the Court of Appeals go beyond permissible limits of judicial review under 10 (f) and cannot be sustained. The Court's alternative to Board certification dispenses with the necessity of an election and can be interpreted, as the Board argues, to leave to the offending employer and the assisted union the decision when the effect of the unfair labor practice has been eliminated and the employees have regained their freedom of action. Nothing said in the Arkansas Flooring case, upon which the Court of Appeals relied, justifies the Court of Appeals in going so far as to dispense with an election under proper safeguards. This Court has long recognized the propriety of an agency's choice of an election as the proper means to assure dissipation of the unwholesome effects of the employer's unlawful assistance to a union. See Texas & New Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 . The Board's discretion here was exceeded only in the inflexibility of the requirement for a Board certification notwithstanding its inappropriateness in the circumstances of this case. The rewriting of the notice to be posted was improper insofar as it deleted reference to the Teamsters Union, [355 U.S. 453, 464] because no objection to the notice in this respect was ever raised by the parties before the Board. Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 350 ; Labor Board v. Cheney California Lumber Co., 327 U.S. 385, 388 -389; cf. Federal Power Comm'n v. Colorado Interstate Gas Co., 348 U.S. 492, 497 . Section 10 (e) of the Act provides: "No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the . . . [Court of Appeals], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." No extraordinary circumstances were shown here. The orderly administration of the Act and due regard for the respective functions of the Board and reviewing courts require that we vacate the judgment of the Court of Appeals with instructions to remand the case to the Board for further proceedings consistent with this opinion. It is so ordered. Footnotes [Footnote 1 The Teamsters Local was International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local No. 612. The Board concurred in the Trial Examiner's findings that when the Teamsters Local was picketing the premises the company rendered illegal support and assistance to District 50 by negotiating the details of a contract with officials of that union before a single employee had actually authorized it as a representative, by showing the draft contract to the drivers at a meeting convened by and presided over by the company president, who assured them that if necessary he would advance the money for dues, after which, and within less than three hours, the drivers signed District 50 authorization cards, established a local which held its first meeting, at the president's suggestion, on company premises, and concluded a contract with the company. [Footnote 2 This remedy was apparently first adopted in Lenox Shoe Co., 4 N. L. R. B. 372, 388, decided December 3, 1937. [Footnote 3 Subsection (f) provides that no investigation shall be made by the Board concerning the representation of employees raised by a labor organization, and no complaint of unfair labor practices shall be issued pursuant to a charge made by a labor organization, unless the organization and any national or international labor organization of which it is an affiliate or constituent shall have filed with the [355 U.S. 453, 456] Secretary of Labor copies of the union's constitution and by-laws and a report showing, among other things, the names of officers and agents whose aggregate compensation and allowance for the preceding year exceeded $5,000, the amounts paid to each, the manner in which such officers and agents were selected, the amount of initiation fees and dues charged to union members, the union's procedures followed with respect to qualification for membership, election as officers and stewards, etc. The subsection also requires the filing with the Secretary of a report showing union receipts, disbursements, and assets and liabilities. Subsection (g) requires, among other things, the filing annually with the Secretary of reports bringing up to date the information required to be supplied under subsection (f). Subsection (h) provides that no investigation of a question of representation raised by a labor organization shall be made and no complaint of unfair labor practices pursuant to a charge made by a labor organization shall issue unless there is on file with the Board an affidavit executed within the preceding year by each officer of the organization and the officers of any national or international labor organization of which it is an affiliate or constituent that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member or supporter of, any organization that believes in or teaches the overthrow of the United States Government by force or by illegal or unconstitutional methods. [355 U.S. 453, 465]

liberal

organization

unions

2002-036-02

United States Supreme Court BRANCH et al. v. SMITH et al.(2003) No. 01-1437 Argued: December 10, 2002Decided: March 31, 2003 After the 2000 census caused Mississippi to lose one congressional seat, the state legislature failed to pass a new redistricting plan. Anticipating a state-law deadline for qualifying candidates, appellants and cross-appellees (state plaintiffs) filed suit in October 2001, asking the State Chancery Court to issue a redistricting plan for the 2002 elections. In a similar action, appellees and cross-appellants (federal plaintiffs) asked the Federal District Court to enjoin the current plan and any state-court plan, and to order at-large elections pursuant to Miss. Code Ann. §23-15-1039 and 2 U.S. C. §2a(c)(5) or, alternatively, to devise its own redistricting plan. The three-judge District Court permitted the state plaintiffs to intervene and concluded that it would assert jurisdiction if it became clear by January 7, 2002, that no state plan would be in place by March 1. On the eve of the state trial, the State Supreme Court ruled that the Chancery Court had jurisdiction to issue a redistricting plan. The Chancery Court adopted such a plan. On December 21, 2001, the state attorney general submitted that plan and the Supreme Court's decision to the Department of Justice (DOJ) for preclearance pursuant to §5 of the Voting Rights Act of 1965. DOJ requested additional information from the State, noting that the 60-day review period would commence once that information was received. The information was provided on February 20, 2002. Meanwhile, the Federal District Court promulgated a plan that would fix the State's congressional districts for the 2002 elections should the state-court plan not be precleared by February 25. When that date passed, the District Court enjoined the State from using the state-court plan and ordered that its own plan be used in 2002 and until the State produced a precleared, constitutional plan. The court based the injunction on the failure of the timely preclearance of the state-court plan, but found, in the alternative, that the state-court plan was unconstitutional. The State did not appeal. DOJ declined to make a determination about the preclearance submission because the District Court's injunction rendered the state-court plan incapable of administration. Held:The judgment is affirmed. 189 F.Supp.2d 548, affirmed. Justice Scalia delivered the opinion of the Court with respect to Parts I, II, and III-A, holding: 1.The District Court properly enjoined enforcement of the state-court plan. Pp.5-9. (a)There are two critical distinctions between these cases and Growe v. Emison, 507 U.S. 25. First, there is no suggestion here that the District Court failed to allow the state court adequate opportunity to develop a redistricting plan. Second, the state-court plan here was subject to §5 of the Voting Rights Act. The controversy over whether the state-court plan was precleared centers on §5's proviso that whenever a covered jurisdiction "shall enact or seek to administer" a voting change, the change may be enforced if the Attorney General does not object within 60 days. Pp.5-6. (b)DOJ's failure to object within 60 days of the state attorney general's original submission did not render the state-court plan enforceable on February 25. A jurisdiction seeking preclearance must provide the Attorney General with information sufficient to prove that the change is nondiscriminatory. DOJ regulations--which are "wholly reasonable and consistent with the Act," Georgia v. United States, 411 U.S. 526, 541--provide that incomplete state submissions do not start the 60-day clock, and that the clock begins to run from the date that requested information is received. DOJ's request here, which was neither frivolous nor unwarranted, postponed the 60-day period. Pp.6-7. (c)The state-court plan was also not precleared 60 days after the state attorney general submitted the requested information. The State was "seek[ing] to administer" the changes within §5's meaning when its attorney general made his initial submission to DOJ and when he provided additional information. However, when the State failed to appeal the District Court's injunction, it ceased "seek[ing] to administer" the state-court plan. The 60-day period was no longer running, so the plan was not rendered enforceable by operation of law. Because a private party's actions are not those of a State, the state plaintiffs' appeal is insufficient to demonstrate that the State still "seek[s] to administer" the plan. Pp.7-9. (d)Since this Court affirms the injunction on the ground that the state-court plan was not precleared and could not be precleared in time for the 2002 election, the Court vacates the District Court's alternative holding that such plan was unconstitutional. P.9. 2.The District Court properly fashioned its own congressional reapportionment plan under 2 U.S.C. §2c. The tension between §§2a(c)(5) and 2c is apparent: Pending redistricting, §2a(c)(5) requires at-large elections if a State loses a congressional seat, while §2(c), which was enacted 26 years later, requires States with more than one Representative to use single-member districts. Contrary to the federal plaintiffs' contention, §2(c) is not limited to legislative action, but also applies to action by state and federal courts when the prescribed legislative action has not been forthcoming. When §2c was adopted in 1967, the issue was precisely the courts' involvement in fashioning electoral plans. The Voting Rights Act had recently been enacted, and this Court's decisions in, e.g., Baker v. Carr, 369 U.S. 186, had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional districts to one-person, one-vote standards. Given the risk that judges would simply order at-large elections, it is most unlikely that §2(c) was directed solely at legislative apportionment. Nor has any court found §2(c) to be so limited. In addition, §2c's language is most susceptible of this interpretation. Pp.9-16. Justice Scalia, joined by The Chief Justice, Justice Kennedy, and Justice Ginsburg, concluded in Part III-B, that §2a(c)--where what it prescribes is constitutional (as it is in paragraph (5))--applies when a state legislature and the state and federal courts have all failed to redistrict pursuant to §2(c). This interpretation allows both §§2a(c) and 2c to be given effect. Section 2a(c) governs the manner of any election held "[u]ntil a State is redistricted in the manner provided by [state] law after any apportionment." When a court redistricts pursuant to §2c, it necessarily does so in such a manner because it must follow the State's "policies and preferences" for districting. White v. Weiser, 412 U.S. 783, 795. A court may invoke §2a(c)'s stopgap provision only when an election is so imminent that redistricting pursuant to state law (including §2c's mandate) cannot be completed without disrupting the election process. Mississippi's at-large provision should be deemed operative when §§2a(c)(2) and (5) would be: The state provision envisions both legislatively and judicially prescribed change and does not come into play as long as it is feasible for a state or federal court to complete redistricting. Pp.17-20. Justice Stevens, joined by Justice Souter and Justice Breyer, while agreeing that the District Court properly enjoined the state-court plan's enforcement and promulgated its own plan under 2 U.S.C. §2c, concluded that §2c impliedly repealed §2a(c) and that the 1967 federal Act pre-empted Mississippi's statutory authorization for at-large congressional elections. The presumption against implied repeals, like that against pre-emption, is overcome if there is an irreconcilable conflict between the two provisions or if the later Act was clearly intended to "cove[r] the whole subject of the earlier one." Posadas v. National City Bank, 296 U.S. 497, 503. By prohibiting States with more than one Representative from electing Representatives at-large, the 1967 Act unambiguously forbids elections that §2a(c)(5) would otherwise authorize. Thus, under either of Posadas' standards, the 1967 Act repealed the earlier §2a(c)(5) and pre-empted Mississippi's law. Any fair reading of the history leading to the 1967 Act's passage shows that the parties believed that the changes they were debating would completely replace §2a(c). The statute was the final gasp in a protracted legislative process. Four versions of the original bill expressly repealed §2a(c), and there was no disagreement about that provision. When that bill did not pass, its less controversial parts, including what is now §2c, were attached to a private bill. The absence of any discussion, debate, or reference to the repeal provision in the legislative process prevents its omission from the final private bill as being seen as a deliberate choice by Congress. Pp.1-7. Scalia, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, the opinion of the Court with respect to Part III-A, in which Rehnquist, C.J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III-B and IV, in which Rehnquist, C.J., and Kennedy and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion, in Part II of which Stevens, Souter, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined. BEATRICE BRANCH, etal., APPELLANTS 01-1437v. JOHN ROBERT SMITH etal. JOHN ROBERT SMITH, etal., APPELLANTS 01-1596v. BEATRICE BRANCH etal. on appeals from the united states district court forthe southern district of mississippi [March 31, 2003] Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Parts III-B and IV, in which The Chief Justice, Justice Kennedy, and Justice Ginsburg join. In these cases, we decide whether the District Court properly enjoined a Mississippi state court's proposed congressional redistricting plan and whether it properly fashioned its own congressional reapportionment plan rather than order at-large elections. I The 2000 census caused Mississippi to lose one congressional seat, reducing its representation in the House of Representatives from five Members to four. The state legislature, however, failed to pass a new redistricting plan after the decennial census results were published in 2001. In anticipation of the March 1, 2002, state-law deadline for the qualification of candidates, see Miss. Code Ann. §23-15-299 (Lexis 2001), appellant and cross-appellee Beatrice Branch and others (state plaintiffs) filed suit in a Mississippi State Chancery Court in October 2001, asking the state court to issue a redistricting plan for the 2002 congressional elections. In November 2001, appellee and cross-appellant John Smith and others (federal plaintiffs) filed a similar action under Rev. Stat. §1979, 42 U.S.C. §1983, in the United States District Court for the Southern District of Mississippi, claiming that the current districting plan, Miss. Code Ann. §23-15-1037 (Lexis 2001), dividing the State into five, rather than four, congressional districts, was unconstitutional and unenforceable. The federal plaintiffs asked the District Court to enjoin the current redistricting plan, and subsequently asked it to enjoin any plan developed by a state court (which they asserted would violate Article I, §4, of the Constitution, and, in any event, could not be enforced until the state court's assertion of redistricting authority was precleared under §5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. §1973c), and asked that it order at-large elections pursuant to Miss. Code Ann. §23-15-1039 (2001) and 46 Stat. 26, 2 U.S.C. §2a(c)(5), or, alterna-tively, devise its own redistricting plan. A three-judge District Court was convened pursuant to 28 U.S.C. §2284. Initially the District Court did not interfere with the State Chancery Court's efforts to develop a redistricting plan. In an order filed on December 5, 2001, Smith v. Clark, 189 F.Supp. 2d 502 (SD Miss.), the District Court permitted the state plaintiffs to intervene and deferred ruling on the federal plaintiffs' motion for a preliminary injunction. In staying its hand, the District Court recognized that "'the Constitution leaves with the States primary responsibility for apportionment of their federal congressional . . . districts,'" id., at 503 (quoting Growe v. Emison, 507 U.S. 25, 34 (1993)), but concluded that "if it is not clear to this court by January 7, 2002 that the State authorities can have a redistricting plan in place by March 1, we will assert our jurisdiction ... and if necessary, we will draft and implement a plan for reapportioning the state congressional districts," 189 F.Supp. 2d, at 503; see also 189 F.Supp. 2d 503, 505-506 (SD Miss. 2002). On the eve of the State Chancery Court trial, the Mississippi Supreme Court denied petitions for writs of prohibition and mandamus filed by a state defendant and others challenging the Chancery Court's jurisdiction to engage in congressional redistricting. It held that the Chancery Court had jurisdiction to issue a redistricting plan. Inre Mauldin, Civ. No. 2001-M-01891 (Dec. 13, 2001), App. to Juris. Statement 110a. Following trial, on December 21, 2001, the State Chancery Court adopted a redistricting plan submitted by the state plaintiffs. On December 26, the state attorney general submitted that plan, along with the Mississippi Supreme Court's Mauldin decision (which arguably changed the process for drawing congressional districts by authorizing the Chancery Court to create a redistricting plan), to the Department of Justice (DOJ) for preclearance. On February 14, 2002, DOJ sent a letter to the state attorney general requesting additional information about the Mauldin decision, because "the information sent to date regarding this change in voting procedure is insufficient ...." App. to Juris. Statement 193a. The letter advised that the "sixty-day review period will begin when we receive the information specified." Id., at 196a. The state attorney general provided additional information on February 19 and 20, 2002. Meanwhile, in January 2002, the District Court, expressing "serious doubts whether the Mississippi Supreme Court's Order and the plan adopted by the Chancery Court pursuant to that order will be precleared prior to the March 1 candidate qualification deadline," 189 F.Supp. 2d, at 508, had begun to develop its own redistricting plan, id., at 511. On February 4, 2002, it promulgated a redistricting plan to be used absent the timely preclearance of the Chancery Court plan. 189 F.Supp. 2d 512 (SD Miss.). On February 19, it ordered that, if the Chancery Court redistricting plan was not "precleared before the close of business on Monday, February 25, 2002," then the District Court's plan would fix the Mississippi congressional districts for the 2002 elections. 189 F.Supp. 2d 529, 548. February 25th came and went with no action by DOJ. On February 26, the District Court enjoined the State from using the Chancery Court plan and ordered use of the District Court's own plan in the 2002 elections and all succeeding elections until the State produced a constitutional redistricting plan that was precleared. 189 F.Supp. 2d 548, 559. The court said that the basis for its injunction and order was "reflected in our opinion of February 19, that is, the failure of the timely preclearance under §5 of the Voting Rights Act of the Hinds County Chancery Court's plan." Id., at 549. However, "in the event that on appeal it is determined that we erred in our February 19 ruling," the court put forth as its "alternative holding" that Article I, §4, of the United States Constitution prohibited the State Chancery Court from issuing a redistricting plan without express authorization from the state legislature. Ibid. The State did not file a notice of appeal. On April 1, 2002, DOJ informed the State in a letter that "it would be inappropriate for the Attorney General to make a determination concerning [the State's preclearance] submission now" because the District Court's injunction rendered the state-court plan incapable of administration. App. 29. The state plaintiffs--intervenors in the District Court--filed a timely notice of appeal from the District Court and a jurisdictional statement. The federal plaintiffs filed a jurisdictional statement on conditional cross-appeal. We noted probable jurisdiction in both appeals and consolidated them. 536 U.S. 903 (2002). II At the outset we should observe two critical distinctions between these cases and the one that was before us in Growe v. Emison, 507 U.S. 25 (1993). In Growe, the Federal District Court had refused to abstain or defer to state-court redistricting proceedings. Id., at 30-31. In reversing, we reminded the federal courts of "'what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.'" Id., at 34 (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)). We held that "[a]bsent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it." 507 U.S., at 34 (emphasis added). In the present case, unlike in Growe, there is no suggestion that the District Court failed to allow the state court adequate opportunity to develop a redistricting plan. The second distinction is that the state-court plan here, unlike that in Growe, was subject to §5 of the Voting Rights Act, 42 U.S.C. §1973c. The District Court rested its injunction of the state-court plan on the ground that necessary preclearance had not been obtained. It is that challenged premise that we examine first. Section 5 of the Voting Rights Act provides that whenever a covered jurisdiction, such as Mississippi, see 30 Fed. Reg. 9897 (1965), "shall enact or seek to administer" a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure," the State must obtain preclearance from the District Court for the District of Columbia or the Attorney General before the change may be enforced. 42 U.S.C. §1973c. The Act requires preclearance of all voting changes, ibid.; see Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 38-39 (1978), and there is no dispute that this includes voting changes mandated by order of a state court, see, e.g., Inre McMillin, 642 So.2d 1336, 1339 (Miss. 1994). Rather, the controversy pertains to the proviso in §1973c to the effect that, where the preclearance submission is made to the Attorney General, the voting change may be enforced if "the Attorney General has not interposed an objection within sixty days after such submission ...." Appellants in No. 01-1437 (originally the state plaintiffs) assert that the District Court erred in believing that the Chancery Court's plan lacked preclearance. It was automatically rendered enforceable, they contend, by DOJ's failure to object within the 60-day period running from the state attorney general's initial submission on December 26, 2001--or, in the alternative, it was subsequently rendered enforceable by DOJ's failure to object within the 60-day period running from the state attorney general's submission of additional information on February 20, 2002. We consider each of these contentions in turn. A Under §5, a jurisdiction seeking administrative preclearance must prove that the change is nondiscriminatory in purpose and effect. Reno v. Bossier Parish School Bd., 528 U.S. 320, 328 (2000). It bears the burden of providing the Attorney General information sufficient to make that proof, Georgia v. United States, 411 U.S. 526, 537-539 (1973), and failure to do so will cause the Attorney General to object, see ibid.; 28 CFR §51.52(c) (2002). In DOJ's view, however, incomplete state submissions do not start the 60-day clock for review. See §§51.27, 51.37. The regulations implementing §5 authorize a DOJ request for additional information from a jurisdiction that has initially "omitted information considered necessary for the evaluation of the submission." §51.37(a). If the jurisdiction responds by supplying the additional information (or stating that it is unavailable), the 60-day clock begins to run from the date the response is received. §51.37(c). We have upheld these regulations as being "wholly reasonable and consistent with the Act." Georgia v. United States, supra, at 541; accord, Morris v. Gressette, 432 U.S. 491, 504, n.19 (1977). DOJ's February 14 request for additional information was within the Attorney General's discretion under 28 CFR §51.37, thereby postponing the 60-day time period for objections until the requested information was received. The request was neither frivolous nor unwarranted. See Georgia v. United States, supra, at 541, n.13. DOJ believed that the Mississippi Supreme Court's Mauldin order, holding that the Chancery Court had jurisdiction to engage in redistricting, was a change in voting procedures, and it sought additional information demonstrating that this change would not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, as required under §5. The fact that the District Court identified the same issue as posing a hurdle to preclearance further suggests that DOJ's request was not frivolous. 189 F.Supp. 2d, at 508-509. The request for more information was not frivolous or unwarranted at the time it was made, regardless of whether it ultimately develops that Mauldin and the Chancery Court's assertion of jurisdiction to redistrict are not voting changes that required preclearance. B Appellants contend that even if the State Chancery Court's plan was not precleared by operation of law on February 25, 2002, it was precleared on April 22, 60 days after the state attorney general submitted the additional information requested. We think not. Section 5 provides that "[w]henever a [covered jurisdiction] shall enact or seek to administer" a voting change, such a change may be enforced if it is submitted to the Attorney General and there is no objection by the Attorney General within 60 days. 42 U.S.C. §1973(c) (emphasis added). Clearly the State Chancery Court's redistricting plan was not "enacted" by the State of Mississippi. An "enactment" is the product of legislation, not adjudication. See Webster's New International Dictionary 841 (2d ed. 1949) (defining "enact" as "[t]o make into an act or law; esp., to perform the legislative act with reference to (a bill) which gives it the validity of law"); Black's Law Dictionary 910 (7th ed. 1999) (defining "legislate" as "[t]o make or enact laws"). The web of state and federal litigation before us is the consequence of the Mississippi Legislature's failure to enact a plan. The Chancery Court's redistricting plan, then, could be eligible for preclearance only if the State was "seek[ing] to administer" it. There is no doubt that the State was "seek[ing] to administer" the changes for which preclearance was sought when the Mississippi attorney general made his initial submission to DOJ on December 26, 2001, and when he provided additional information regarding the state-court plan on February 20, 2002. On February 26, 2002, however, the District Court "enjoined [the State] from implementing the congressional redistricting plan adopted by the [state court]," 189 F.Supp. 2d, at 559, and the State never appealed that injunction. Uncontrovertibly, the State was no longer "seek[ing] to administer" the state-court plan, and thus the 60-day time period for DOJ review was no longer running. The passing of 60 days from the date of the State's February 20, 2002, submission of the additional requested information had no legal significance, and the state-court plan was not rendered enforceable by operation of law. Appellants' argument--that their appeal, as intervenors, is sufficient to demonstrate that the State still "seek[s] to administer" the state-court plan--is invalid on its face. The actions of a private party are not the actions of a State and cannot satisfy the prerequisite to §5 preclearance. C Since we affirm the injunction on the basis of the District Court's principal stated ground that the state-court plan had not been precleared and had no prospect of being precleared in time for the 2002 election, we have no occasion to address the District Court's alternative holding that the State Chancery Court's redistricting plan was unconstitutional--a holding that the District Court specified was set forth to cover the eventuality of the principal stated ground's being rejected on appeal--and therefore we vacate it as a basis for the injunction. The District Court's alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court. III Having determined that the District Court properly enjoined enforcement of the state-court redistricting plan, we turn to the propriety of the redistricting plan that the District Court itself adopted. Cross-appellees in No. 01-1596 (originally the state plaintiffs) and the United States, as amicus curiae, argue that the District Court was required to draw (as it did) single-member congressional districts; cross-appellants in No. 01-1596 (originally the federal plaintiffs) contend that it was required to order at-large elections for the congressional seats. We must decide whether, as cross-appellees contend, the District Court was governed by the provisions of 2 U.S.C. §2c; or, as cross-appellants contend, by the provisions of 2 U.S.C. §2a(c)(5). A Article I, §4, cl.1, of the Constitution provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...." It reserves to Congress, however, the power "at any time by Law [to] make or alter such Regulations, except as to the Places of chusing Senators." Ibid. Pursuant to this authority, Congress in 1929 enacted the current statutory scheme governing apportionment of the House of Representatives. 2 U.S.C. §§2a(a), (b). In 1941, Congress added to those provisionsa subsection addressing what is to be done pendingredistricting: "Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large." §2a(c). In 1967, 26 years after §2a(c) was enacted, Congress adopted §2c, which provides, as relevant here: "In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ...." The tension between these two provisions is apparent: Section 2c requires States entitled to more than one Representative to elect their Representatives from single-member districts, rather than from multimember districts or the State at large. Section 2a(c), however, requires multimember districts or at-large elections in certain situations; and with particular relevance to the present cases, in which Mississippi, by reason of the 2000 census, lost a congressional seat, §2a(c)(5) requires at-large elections. Cross-appellants would reconcile the two provisions by interpreting the introductory phrase of §2a(c) ("Until a State is redistricted in the manner provided by the law thereof after any apportionment") and the phrase "established by law" in §2c to refer exclusively to legislative redistricting--so that §2c tells the legislatures what to do (single-member districting) and §2a(c) provides what will happen absent legislative action--in the present cases, the mandating of at-large elections. The problem with this reconciliation of the provisions is that the limited role it assigns to §2c (governing legislative apportionment but not judicial apportionment) is contradicted both by the historical context of §2c's enactment and by the consistent understanding of all courts in the almost 40 years since that enactment. When Congress adopted §2c in 1967, the immediate issue was precisely the involvement of the courts in fashioning electoral plans. The Voting Rights Act of 1965 had recently been enacted, assigning to the federal courts jurisdiction to involve themselves in elections. See 79 Stat. 439 (as amended and codified at 42 U.S.C. §1973 et seq.). Even more significant, our decisions in Baker v. Carr, 369 U.S. 186 (1962), Wesberry v. Sanders, 376 U.S. 1 (1964), and Reynolds v. Sims, 377 U.S. 533 (1964), had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards. In a world in which the role of federal courts in redistricting disputes had been transformed from spectating, see Colegrove v. Green, 328 U.S. 549 (1946) (opinion of Frankfurter, J.), to directing, the risk arose that judges forced to fashion remedies would simply order at-large elections. At the time Congress enacted §2c, at least six District Courts, two of them specifically invoking 2 U.S.C. §2a(c)(5), had suggested that if the state legislature was unable to redistrict to correct malapportioned congressional districts, they would order the State's entire congressional delegation to be elected at large. On March 26, 1964, a three-judge District Court ordered that, pending enactment of a constitutional redistricting plan by the Michigan Legislature, all Michigan Representatives would be elected at large. Calkins v. Hare, 228 F.Supp. 824, 830 (ED Mich. 1964). On October 19, 1964, a three-judge District Court entered a similar order for the State of Texas. See Bush v. Martin, 251 F.Supp. 484, 489, and n.11, 490, and n.17 (SD Tex. 1966). On February 3, 1965, a three-judge District Court in Arkansas, whose House delegation had decreased from six to four Members after the 1960 census, stated that under §2a(c)(5), "if the Legislature . . . had taken no action [after the 1960 apportionment] the congressmen would have been required to run at large," and that the same reasoning would compel the court to require at-large elections if the legislature adopted malapportioned congressional districts. Park v. Faubus, 238 F.Supp. 62, 66 (ED Ark. 1965). On August 5, 1966, a three-judge District Court in Missouri, whose House delegation had decreased from 11 to 10 Members after the 1960 census, informed the State that if it was unable to redistrict in accordance with the Constitution, then pursuant to the "command of Section 2(a)(c) [sic]," "the congressional elections for Missouri will be ordered conducted at large until new and constitutional districts are created." Preisler v. Secretary of State of Missouri, 257 F.Supp. 953, 981, 982 (WD Mo. 1966), aff'd, 385 U.S. 450 (1967) (per curiam). In Meeks v. Anderson, 229 F.Supp. 271, 273-274 (Kan. 1964), and Baker v. Clement, 247 F.Supp. 886, 897-898 (MD Tenn. 1965), three-judge District Courts stayed their hands but held forth the possibility of requiring at-large elections. With all this threat of judicially imposed at-large elections, and (as far as we are aware) no threat of a legislatively imposed change to at-large elections, it is most unlikely that §2c was directed solely at legislative reapportionment. Nor have the courts ever thought so. To the contrary, every court that has addressed the issue has held that §2c requires courts, when they are remedying a failure to redistrict constitutionally, to draw single-member districts whenever possible. The first court to examine §2c, just two weeks after the statute was enacted, was the three-judge District Court in Missouri that had previously threatened to order at-large elections in accordance with §2a(c)(5). In its decision on December 29, 1967, that court observed that the enactment of §2c had "relieved [it] of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large," Preisler v. Secretary of State of Missouri, 279 F.Supp. 952, 969 (WD Mo. 1967), aff'd, 394 U.S. 526 (1969), and accordingly reversed its prior position and stated that it would fashion a districting plan if the State failed to fulfill its duty. Four years later, the Supreme Court of Virginia denied a writ of mandamus directing at-large elections to replace an allegedly unconstitutional Redistricting Act, on the ground that by reason of §2c "we cannot legally issue the writ." Simpson v. Mahan, 212 Va. 416, 417, 185 S.E. 2d 47, 48 (1971). The next year the Supreme Court of California reached the same conclusion that §2c required it to establish single-member districts, see Legislature v. Reinecke, 6 Cal. 3d 595, 602-603, 492 P.2d 385, 390 (1972), a conclusion that it reaffirmed in 1982, see Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d 638, 664, 639 P.2d 939, 955 (1982). In Shayer v. Kirkpatrick, 541 F.Supp. 922, 926 (WD Mo.), aff'd subnom. Schatzle v. Kirkpatrick, 456 U.S. 966 (1982), the District Court concluded that "nothing in section 2c suggests any limitation on its applicability," and declined to order at-large elections pursuant to §2a(c)(5) because §2c "appears to prohibit at-large elections." And in Carstens v. Lamm, 543 F.Supp. 68 (Colo. 1982), the District Court reached a substantially identical result, although contemplating that §2a(c) provided a "stop-gap measure" in the "event that no constitutional redistricting plan exists on the eve of a congressional election, and there is not enough time for either the Legislature or the courts to develop an acceptable plan," id., at 77, and n. 23. It bears noting that this Court affirmed two of the District Court decisions described above, see Preisler, 279 F. Supp 952, and Shayer, supra, one without discussing §2c, and one summarily. And in 1971 we observed in dictum that "[i]n 1967, Congress reinstated the single-member district requirement" that had existed before the enactment of §2a(c). Whitcomb v. Chavis, 403 U.S. 124, 159, n. 39 (1971). Of course the implausibility (given the circumstances of its enactment) that §2c was meant to apply only to legislative reapportionment, and the unbroken unanimity of state and federal courts in opposition to that interpretation, would be of no consequence if the text of §2c (and of §2a(c)) unmistakably demanded that interpretation. But it does not. Indeed, it is more readily susceptible of the opposite interpretation. The clause "there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled" could, to be sure, be so interpreted that the phrase "by law" refers only to legislative action. Its more common meaning, however, encompasses judicial decisions as well. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (referring to judicial decisions as "established law" in qualified immunity context); Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998) (referring to judicial decisions as "established law" in the attorney-client privilege context); United States v. Frady, 456 U.S. 152, 166 (1982) (referring to the judicially established standard of review for a 28 U.S.C. §2255 motion as "long-established law"); see also §2254(d)(1) ("clearly established Federal law, as determined by the Supreme Court of the United States"); Marbury v. Madison, 1 Cranch 137, 177 (1803) (it is "the province and duty of the judicial department to say what the law is"). We think, therefore, that while §2c assuredly envisions legislative action, it also embraces action by state and federal courts when the prescribed legislative action has not been forthcoming. We might note that giving "by law" its less common meaning would cause the immediately following clause of §2c ("and Representatives shall be elected only from districts so established" (emphasis added)) to exclude all courts from redistricting, including even state courts acting pursuant to state legislative authorization in the event of legislative default. It is hard to see what plausible congressional purpose this would serve. When, as here, the situation (a decrease in the number of Representatives, all of whom were formerly elected from single-member districts) enables courts to prescribe at-large elections under paragraph (5) of §2a(c) (assuming that section subsists, see infra, at 17), it can be said that there is a constitutional fallback. But what would occur if the situation called for application of paragraphs (1) to (4) of §2a(c), none of which is constitutionally enforceable when (as is usual) the decennial census has shown a proscribed degree of disparity in the voting population of the established districts? The absolute prohibition of §2c ("Representatives shall be elected only from [single-member] districts [legislatively] established") would be subject to no exception, and courts would (despite Baker v. Carr) be congressionally forbidden to act when the state legislature has not redistricted. Only when it is utterly unavoidable should we interpret a statute to require an unconstitutional result--and that is far from the situation here. In sum, §2c is as readily enforced by courts as it is by state legislatures, and is just as binding on courts--federal or state--as it is on legislatures. B Having determined that in enacting 2 U.S.C. §2c, Congress mandated that States are to provide for the election of their Representatives from single-member districts, and that this mandate applies equally to courts remedying a state legislature's failure to redistrict constitutionally, we confront the remaining question: what to make of §2a(c)? As observed earlier, the texts of §2c and §2a(c)(5) are in tension. Representatives cannot be "elected only from districts," §2c, while being elected "at large," §2a(c). Some of the courts confronted with this conflict have concluded that §2c repeals §2a(c) by implication. See Shayer v. Kirkpatrick, 541 F.Supp., at 927; Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d, at 663-664, 639 P.2d, at 954. There is something to be said for that position--especially since paragraphs (1) through (4) of §2a(c) have become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional. (The unlikely exception is the situation in which the decennial census makes no districting change constitutionally necessary.) Eighty percent of the section being a dead letter, why would Congress adhere to the flotsam of paragraph (5)? We have repeatedly stated, however, that absent "a clearly expressed congressional intention," Morton v. Mancari, 417 U.S. 535, 551 (1974), "repeals by implication are not favored," Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U.S. 186, 193 (1968). An implied repeal will only be found where provisions in two statutes are in "irreconcilable conflict," or where the latter act covers the whole subject of the earlier one and "is clearly intended as a substitute." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). So while there is a strong argument that §2c was a substitute for §2a(c), we think the better answer is that §2a(c)--where what it prescribes is constitutional (as it is with regard to paragraph (5))--continues to apply. Section 2a(c) is, of course, only provisionally applicable. It governs the manner of election for Representatives in any election held "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment." That language clashes with §2c only if it is interpreted to forbid judicial redistricting unless the state legislature has first acted. On that interpretation, whereas §2c categorically instructs courts to redistrict, §2a(c)(5) forbids them to do anything but order at-large elections unless the state legislature has acted. But there is of course no need for such an interpretation. "Until a State is redistricted" can certainly refer to redistricting by courts as well as by legislatures. Indeed, that interpretation would seem the preferable one even if it were not a necessary means of reconciling the two sections. Under prior versions of §2a(c), its default or stopgap provisions were to be invoked for a State "until the legislature of such State . . . [had] redistrict[ed] such State." Act of Jan. 16, 1901, ch. 93, §4, 31 Stat. 734 (emphasis added); see Act of Feb. 7, 1891, ch. 116, §4, 26 Stat. 736 ("until such State be redistricted as herein prescribed by the legislature of said State" (emphasis added)); Act of Feb. 25, 1882, ch. 20, §3, 22 Stat. 6 ("shall be elected at large, unless the Legislatures of said States have provided or shall otherwise provide" (emphasis added)). These provisions are in stark contrast to the text of the current §2a(c): "[u]ntil a State is redistricted in the manner provided by the law thereof." If the more expansive (and more natural) interpretation of §2a(c) is adopted, its condition can be met--and its demand for at-large elections suspended--by the very court that follows the command of §2c. For when a court, state or federal, redistricts pursuant to §2c, it necessarily does so "in the manner provided by [state] law." It must follow the "policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature," except, of course, when "adherence to state policy . . . detract[s] from the requirements of the Federal Constitution." White v. Weiser, 412 U.S. 783, 795 (1973). Federal constitutional prescriptions, and federal statutory commands such as that of §2c, are appropriately regarded, for purposes of §2a(c), as a part of the state election law. Thus, §2a(c) is inapplicable unless the state legislature, and state and federal courts, have all failed to redistrict pursuant to §2c. How long is a court to await that redistricting before determining that §2a(c) governs a forthcoming election? Until, we think, the election is so imminent that no entity competent to complete redistricting pursuant to state law (including the mandate of §2c) is able to do so without disrupting the election process. Only then may §2a(c)'s stopgap provisions be invoked. Thus, §2a(c) cannot be properly applied--neither by a legislature nor a court--as long as it is feasible for federal courts to effect the redistricting mandated by §2c. So interpreted, §2a(c) continues to function as it always has, as a last-resort remedy to be applied when, on the eve of a congressional election, no constitutional redistricting plan exists and there is no time for either the State's legislature or the courts to develop one. Cf. Carstens v. Lamm, 543 F.Supp., at 77-78. There remains to be considered Mississippi's at-large election provision, which reads as follows: "Should an election of representatives in Congress occur after the number of representatives to which the state is entitled shall be changed, in consequence of a new apportionment being made by Congress, and before the districts shall have been changed to conform to the new apportionment, representatives shall be chosen as follows: In case the number of representatives to which the state is entitled be increased, then one (1) member shall be chosen in each district as organized, and the additional member or members shall be chosen by the electors of the state at large; and if the number of representatives shall be diminished, then the whole number shall be chosen by the electors of the state at large." Miss. Code Ann. §23-15-1039 (Lexis 2001). There has been no interpretation of this provision by the Mississippi courts. We believe it was designed to track 2 U.S.C. §§2a(c)(2) and (5), and should be deemed operative when those provisions would be. That is to say, (1) the phrase "and before the districts shall have been changed to conform to the new apportionment" envisions both legislatively and judicially prescribed change, and (2) the statute does not come into play as long as it remains feasible for a state or federal court to complete redistricting. In these cases, the District Court properly completed the redistricting of Mississippi pursuant to 2 U.S.C. §2c and thus neither Mississippi Code §23-15-1039 nor 2 U.S.C. §2a(c) was applicable. IV Justice O'Connor's opinion concurring in part and dissenting in part (hereinafter "the dissent") agrees that the District Court properly acted to remedy a constitutional violation, see post, at 9-10, but contends that it should have looked to §2a(c) rather than §2c in selecting an appropriate remedy. We think not. We have explained why it makes sense for §2c to apply until there is no longer any reasonable prospect for redistricting according to state law--whereupon §2a(c) applies. If, like the dissent, we were to forgo such analysis and simply ask, in the abstract, which of the two provisions has primacy, we would probably still select §2c--the only one cast in absolute, rather than conditional, terms. The dissent gives not the hint of a reason why it believes §2a(c) has primacy. It says that "[t]he text of §2a(c) directs federal courts to order at-large elections '[u]ntil a State is redistricted in the manner provided by the law thereof.'" Post, at 10. But it is equally true that §2c directs federal courts to redistrict absolutely and without qualification. The dissent does contemplate a role for federal courts in redrawing congressional districts, but only "after a State has been redistricted" in the first instance. Post, at 9. It is not entirely clear which entities the dissent considers competent to do this initial redistricting--certainly the legislature, and perhaps also state courts, but only if such "courts are part of the 'manner provided by the law thereof.'" Post, at 10, n.1. But the dissent also says that "a court should enforce §2a(c) before a 'State is redistricted in the manner provided by the law thereof,' and a court should enforce §2c after a State" has been initially redistricted, post, at 9--which (if one takes the words at face value) leaves no room for any court to do the initial redistricting. We assume the dissent does not mean precisely what it has said. The dissent implicitly differentiates between federal and state courts--effectively holding that state courts may undertake the initial redistricting that would satisfy §2a(c)'s prerequisite, but federal courts may not. It presumably rests this distinction upon the belief that state courts are capable of redistricting "in the manner provided by the law thereof," whereas federal courts are not. See post, at 10, n.1. To read that phrase as potentially including state--but not federal--courts, the dissent takes the word "manner" to refer to process or procedures, rather than substantive requirements. See ibid. (If the State's process for redistricting includes courts, then and only then may courts redistrict, rendering §2a(c) inapplicable) But such a reading renders the phrase "in the manner provided by the law thereof" redundant of the requirement that the state be "redistricted." Of course the State has not been redistricted if districts have been drawn by someone without authority to redistrict. Should an ambitious county clerk or individual legislator sit down and draw up a districting map, no one would think that the State has, within the meaning of the statute, been "redistricted." In our view, the word "manner" refers to the State's substantive "policies and preferences" for redistricting, White v. Weiser, 521 U.S. 74, 86 (1997); see also Upham v. Seamon, 456 U.S. 37, 42-43 (1982) (per curiam). Thus, when a federal court redistricts a State in a manner that complies with that State's substantive districting principles, it does so "in the manner provided by the law thereof." See supra, at 18-19.** While it certainly remains preferable for the State's legislature to complete its constitutionally required redistricting pursuant to the requirements of §2c, see Abrams, supra, at 101, or for the state courts to do so if they can, see Growe, 369 U.S. 186 (1962). When the State, through its legislature or other authorized body, cannot produce the needed decision, then federal courts are "left to embark on [the] delicate task" of redistricting, Abrams, supra, at 101. The dissent claims that we have read the statutory phrase "[u]ntil a State is redistricted" to mean "[u]ntil . . . the election is so imminent that no entity competent to complete redistricting pursuant to the mandate of §2c is able to do so without disrupting the election process." Post, at 7. From that premise, it proceeds to mount a vigorous (and, in the principles it espouses, highly edifying) "plain meaning" attack upon our holding. Unfortunately, the premise is patently false. We, no less than the dissent, acknowledge that "the text tells us 'how long' §2a(c) should govern: 'until a State is redistricted in the manner provided by the law thereof,'" post, at 8. The issue is not how long §2a(c) governs, but how long a court (under the continuing mandate of §2a(c)) should wait before ordering an at-large election. The dissent treats §2a(c) as though it prescribes (in its application to the facts of the present case) the immediate establishment of statewide districts (i.e., an at-large election) for all Representatives. It prescribes no such thing. All it says is that "[u]ntil [the] State is redistricted in the manner provided by the law thereof," Representatives "shall be elected from the State at large." The only point at which §2a(c) issues a command--the only point at which it bites--is at election time. Only if, at election time, redistricting "in the manner provided by [state] law" has not occurred, does §2a(c) become operative. So despite the dissent's ardent protestations to the contrary, see ibid., the dissent, no less than we, must confront the question "[h]ow long is a court to await that redistricting before determining that §2a(c) governs a forthcoming election?" Surely the dissent cannot possibly believe that, since "the text tells us 'how long' §2a(c) should govern," ibid., a court can declare, immediately after congressional reapportionment, and before the state legislature has even had a chance to act, that the State's next elections for Representatives will be at large. We say that the state legislature (and the state and federal courts) should be given the full time available--right up until the time when further delay will disrupt the election process--to reapportion according to state law. Since the dissent disagrees with that, we wonder what its own time line might be. But to claim that there is no time line--simply to assert that "[§]2a(c) contains no imminence requirement," ibid.--is absurd. The dissent suggests that our reading of §2c runs afoul of the Court's anticommandeering jurisprudence, see post, at 10-11, but in doing so the dissent fails to recognize that the state legislature's obligation to prescribe the "Times, Places and Manner" of holding congressional elections is grounded in Article I, §4, cl.1, of the Constitution itself and not any mere statutory requirement. Here, as acknowledged by the dissent, the federal plaintiffs "alleged a constitutional violation"--failure to provide for the election of the proper number of representatives in accordance with Article I, §2, cl.1--"and the federal court drew a plan to remedy that violation," post, at 10. In crafting its remedy, the District Court appropriately followed the "Regulations" Congress prescribed in §2c--"Regulations" that Article I, §4, cl.1, of the Constitution expressly permits Congress to make, see supra, at 10. To be sure §2c "envisions legislative action," supra, at 16, but in the context of Article I, §4, cl.1, such "Regulations" are expressly allowed. In enacting §2c (and §2a(c), for that matter), Congress was not placing a statutory obligation on the state legislatures as it was in New York v. United States, 505 U.S. 144 (1992); rather, it was regulating (as the Constitution specifically permits) the manner in which a State is to fulfill its pre-existing constitutional obligations under Article I, §§2 and 4. Our interpretation of §2c no more permits a commandeering of the machinery of state government than does the dissent's understanding of §2a(c). Under our view, if the State fails to redistrict, then federal courts may do so. Under the dissent's view, if the State fails to redistrict (and loses congressional seats), then the federal courts must order at-large elections pursuant to §2a(c)(5). See, e.g., post, at 9. If our reading of §2c runs afoul of any anticommandeering principles, then the dissent commits the same sin. Another straw man erected by the dissent is to be found in its insistence--as though in response to an argument of ours--that "[s]ince §2a(c) was enacted decades before the Baker line of cases, this subsequent development cannot change the interpretation of §2a(c)." Post, at 16. But we have never said that those cases changed the meaning of §2a(c); we have said that they help to explain the meaning of §2c, which was enacted after they were decided. And it is, of course, the most rudimentary rule of statutory construction (which one would have thought familiar to dissenters so prone to preachment on that subject, see, e.g., post, at 7, 14, 16) that courts do not interpret statutes in isolation, but in the context of the corpus juris of which they are a part, including later-enacted statutes: "The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them . . . . If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute . . . ; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute." United States v. Freeman, 3 How. 556, 564-565 (1845). That is to say, the meaning of §2c (illuminated by the Baker v. Carr line of cases) sheds light upon the meaning of §2a(c). Finally, the dissent gives the statutory phrase "redistricted in the manner provided by the law thereof" a meaning that is highly unusual. It means, according to the dissent, "redistricted as state law requires," even when state law is unconstitutional--so that even an unconstitutional redistricting satisfies the "until" clause of §2a(c), and enables §2c to be applied. We know of no other instance in which a federal statute acknowledges to be "state law" a provision that violates the Supremacy Clause and is therefore a legal nullity. It is particularly peculiar for the dissent to allow an unconstitutional redistricting to satisfy the "until" clause when it will not allow a nonprecleared redistricting to satisfy the "until" clause (in those States subject to §5 of the Voting Rights Act, 42 U.S.C. §1973c). See post, at 20-21. That is to say, in the dissent's view a redistricted State is not "redistricted" within the meaning of §2a(c) if the districts have not been precleared, but it is "redistricted" even if the districts are patently unconstitutional (so long as they have been precleared, or the State is not subject to the preclearance requirement). Section 2a(c), of course, has no "preclearance exception." If redistricting "in the manner provided by [state] law" is ineffective when a federal statute (§5 preclearance) has been disregarded, surely it is also ineffective when the Federal Constitution has been disregarded. It is not we but the dissent that reads into the text of §2a(c) ("redistricted in the manner provided by [state] law") distinctions that have no basis in reality. * * * The judgment of the District Court is Affirmed. BEATRICE BRANCH, etal., APPELLANTS 01-1437v. JOHN ROBERT SMITH etal. JOHN ROBERT SMITH, etal., APPELLANTS 01-1596v. BEATRICE BRANCH etal. on appeals from the united states district court forthe southern district of mississippi [March 31, 2003] Justice Kennedy, with whom Justice Stevens, Justice Souter, and Justice Breyer join as to Part II, concurring. I I join the Court's opinion and the plurality opinion in Parts III-B and IV. The Court's opinion makes clear why the District Court was correct to enjoin the redistrict-ing plan developed by the Mississippi State Chancery Court as not precleared under §5 of the Voting Rights Act of 1965, 42 U.S.C. §1973c. Ante, at 5-9. The Court then vacates the District Court's alternative holding that the state-court plan violated Article I, §4, of the United States Constitution. Ante, at 9. II It seems appropriate to explain why, in my view, our ruling vacating the judgment is mandated by our earlier cases. There is precedent for our ruling. See Connor v. Waller, 421 U.S. 656 (1975) (per curiam); United States v. Board of Supervisors of Warren Cty., 429 U.S. 642, 646-647 (1977) (per curiam); Connor v. Finch, 431 U.S. 407, 412 (1977); Wise v. Lipscomb, 437 U.S. 535, 542 (1978) (opinion of White, J.); see also post, at 1 (O'Connor, J., concurring in part and dissenting in part). Once the District Court found no preclearance, it was premature, given this statutory scheme, for the court to consider the constitutional question. Where state reapportionment enactments have not been precleared in accordance with §5, the district court "err[s] in deciding the constitutional challenges" to these acts. Connor v. Waller, at 656. The rule prescribed by Connor reflects the purposes behind the Voting Rights Act. Concerned that "covered jurisdictions would exercise their ingenuity to devise new and subtle forms of discrimination, Congress prohibited those jurisdictions from implementing any change in voting procedure without obtaining preclearance under §5." Hathorn v. Lovorn, 457 U.S. 255, 268 (1982). A jurisdiction covered by §5 must seek approval of either the Attorney General of the United States or the United States District Court for the District of Columbia. See, e.g., Clark v. Roemer, 500 U.S. 646, 652 (1991); Lopez v. Monterey County, 519 U.S. 9, 12 (1996). Absent preclearance, a voting change is neither effective nor enforceable as a matter of federal law. Connor v. Waller, supra, at 656; Board of Supervisors, supra, at 645; Finch, supra, at 412; Wise, supra, at 542; Hathorn, supra, at 269; Clark, supra, at 652; post, at 17-18 (O'Connor, J., concurring in part and dissenting in part). The process, in particular the administrative scheme, is designed to "'giv[e] the covered State a rapid method of rendering a new state election law enforceable.'" Georgia v. United States, 411 U.S. 526, 538 (1973) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 549 (1969)). To be consistent with the statutory scheme, the district courts should not entertain constitutional challenges to nonprecleared voting changes and in this way anticipate a ruling not yet made by the Executive. The proposed changes are not capable of implementation, and the constitutional objections may be resolved through the preclearance process. The constitutional challenge presented to the District Court here fell within the ambit of the Connor rule. Our previous cases addressed contentions that the state reapportionment plan violated the one-person, one-vote principle or diluted minority voting strength. Connor v. Waller, 396 F.Supp. 1308, 1309 (SD Miss. 1975), rev'd, 421 U.S. 656 (1975) (per curiam); Board of Supervisors, supra, at 643-644; Wise, supra, at 538-539. In this litigation, appellees objected to the constitutionality of the state court's assumption of authority to devise a redistricting plan. The fact that appellees framed their constitutional argument to the state court's authority to pass a redistricting plan rather than to the plan's components does not make their claim reviewable. The plan was not yet precleared and so could not cause appellees injury through enforcement or implementation. In deciding to address the constitutional challenge the District Court was motivated by the commendable purpose of enabling this Court to examine all the issues presented by the litigation in one appeal. This approach, however, forces the federal courts to undertake unnecessary review of complex constitutional issues in advance of an Executive determination and so risks frustrating the mechanism established by the Voting Rights Act. In these cases, for instance, the District Court's decision led to a delay in preclearance because the United States Attorney General (whether or not authorized to do so by the statute) refused to consider the state-court plan while the constitutional injunction remained in place. App. 28-29. The advance determination, moreover, can risk at least the perception that the Executive is revising the judgment of an Article III court. Adherence to the rule of Connor provides States covered by §5 with time to remedy constitutional defects without the involvement of federal courts. Given the statutory command of direct review to this Court, it also helps to ensure that only constitutional issues necessary to the resolution of the electoral dispute are brought to us. BEATRICE BRANCH, etal., APPELLANTS 01-1437v. JOHN ROBERT SMITH etal. JOHN ROBERT SMITH, etal., APPELLANTS 01-1596v. BEATRICE BRANCH etal. on appeals from the united states district court forthe southern district of mississippi [March 31, 2003] Justice Stevens, with whom Justice Souter and Justice Breyer join, concurring in part and concurring in the judgment. In 1967 Congress enacted a brief statutory provision that banned at-large elections for Representatives. In my opinion the portion of that statute that is codified at 2 U.S.C. §2c impliedly repealed §2a(c). The reasons that support that conclusion also persuade me that the 1967 federal Act pre-empted Mississippi's statutory authorization of at-large election of Representatives in Congress. Accordingly, while I join Parts I, II, and III-A of the Court's opinion, I do not join Parts III-B or IV. The question whether an Act of Congress has repealed an earlier federal statute is similar to the question whether it has pre-empted a state statute. When Congress clearly expresses its intent to repeal or to pre-empt, we must respect that expression. When it fails to do so expressly, the presumption against implied repeals, like the presumption against pre-emption, can be overcome in two situations: (1) if there is an irreconcilable conflict between the provisions in the two Acts; or (2) if the later Act was clearly intended to "cove[r] the whole subject of the earlier one." Posadas v. National City Bank, 296 U.S. 497, 503 (1936).1 As I read the 1967 statute it entirely prohibits States that have more than one congressional district from adopting either a multimember district or electing their Representatives in at-large elections, with one narrow exception that applied to the 1968 election in two States. After a rather long and contentious legislative process, Congress enacted this brief provision: "AN ACT "For the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purposes of the Immigration and Nationality Act, Doctor Ricardo Vallejo Samala shall be held and considered to have been lawfully admitted to the United States for permanent residence as of August 30, 1959. "In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of subsection (a) of section 22 of the Act of June 18, 1929, entitled 'An Act to provide for apportionment of Representatives' (46 Stat. 26), as amended, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress)." Pub. L. 90-196, 81 Stat. 581 (emphasis added). The second paragraph of this statute enacts a general rule prohibiting States with more than one congressional Representative from electing their Representatives to Congress in at-large elections.2 That the single exception to this congressional command applied only to Hawaii and New Mexico, and only to the 1968 election, emphasizes the fact that the Act applies to every other State and every other election. Thus, it unambiguously forbids elections that would otherwise have been authorized by §2a(c)(5). It both creates an "irreconcilable conflict" with the 1941 law and it "covers the whole subject" of at-large congressional elections. Posadas, 296 U.S., at 503. Under either of the accepted standards for identifying implied repeals, it repealed the earlier federal statute. In addition, this statute pre-empts the Mississippi statute setting the default rule as at-large elections. The first paragraph of the 1967 statute suggests an answer to the question of why Congress failed to enact an express repeal of the 1941 law when its intent seems so obvious. The statute that became law in December 1967 was the final gasp in a protracted legislative process that began on January 17, 1967, when Chairman Celler of the House Judiciary Committee introduced H.R. 2508, renewing efforts made in the preceding Congress to provide legislative standards responsive to this Court's holding in Wesberry v. Sanders, 376 U.S. 1 (1964), that the one-person, one-vote principle applies to congressional elections.3 The bill introduced by Representative Celler in 1967 contained express language replacing §2a(c) in its entirety.4 H.R. 2508, as introduced, had three principal components that are relevant to the implied repeal analysis. First, the bill required single-member district elections: "[T]here shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled; and Representatives shall be elected only from districts so established, no district to elect more than one Representative." H.R. 2508, 90th Cong., 1st Sess., p. 2 (1967). Second, the bill limited gerrymandering, requiring each district to "at all times be composed of contiguous territory, in as compact form as practicable." Ibid. Third, the bill required proportional representation: "[N]o district established in any State for the Ninetieth or any subsequent Congress shall contain a number of persons, excluding Indians not taxed, more than 15 per centum greater or less than the average obtained" by dividing the population by the number of Representatives. Ibid. This bill generated great controversy and discussion. Importantly for present purposes, however, only two of the three components were discussed in depth at all. At no point, either in any of the numerous Conference Reports or lengthy floor debates, does any disagreement regarding the language expressly repealing §2a(c) or the single-member district requirement appear. Rather, the debate was confined to the gerrymandering requirement, the proportionality rule, and the scope and duration of the temporary exceptions to the broad prohibition against at-large elections. The House Judiciary Committee amended the bill, limiting the proportional differences between districts in all States to not exceed 10 percent and creating an exception to the general rule for the 91st and 92d Congresses (1968 and 1970 elections) that allowed for "the States of Hawaii and New Mexico [to] continue to elect their Representatives at large" and for the proportional differences to be as large as 30 percent. H.R. Rep. No. 191, 90th Cong., 1st Sess., 1-2 (1967). The House then passed this amended bill. The Senate Judiciary Committee then amended this bill, striking Hawaii from the exception and allowing for 35 percent, rather than 30 percent, variation between districts during the 91st and 92d Congresses. S.Rep. No. 291, 90th Cong., 1st Sess., 1 (1967). The bill went to conference twice, and the conference recommended two sets of amendments. The first Conference Report, issued June 27, 1967, recommended striking any exception to the general rule and limiting proportional variation to 10 percent or less. See H.R. Conf. Rep. No. 435, 90th Cong., 1st Sess., 1-2 (1965). After this compromise failed to pass either the House or the Senate, the conference then recommended a measure that was very similar to the second paragraph of the private bill eventually passed--a general rule requiring single-member districts with an exception, of unlimited duration, for Hawaii and New Mexico. H.R. Conf. Rep. No. 795, 90th Cong., 1st Sess., 1 (1965). Importantly, every version of the bill discussed in the House Report, the Senate Report, and both Conference Reports contained a provision expressly repealing §2a(c). In spite of these several modifications, the bill, as recommended by the last conference, failed to pass either chamber. The decision to attach what is now §2c to the private bill reflected this deadlock. Indeed, proponents of this attachment remarked that they sought to take the uncontroversial components of the prior legislation to ensure that Congress would pass some legislation in response to Wesberry v. Sanders, 376 U.S. 1 (1964).5 The absence of any discussion, debate, or reference to the provision expressly repealing §2a(c) in the private bill prevents its omission from the final bill as being seen as a deliberate choice by Congress. Any fair reading of the history leading up to the passage of this bill demonstrates that all parties involved were operating under the belief that the changes they were debating would completely replace §2a(c). Justice O'Connor has provided us with a convincing exposition of the flaws in Justice Scalia's textual interpretation of §2a(c)(5). See post, at 7-10 (opinion concurring in part and dissenting in part). Ironically, however, she has been misled by undue reliance on the text of statutes enacted in 1882, 1891, 1901, and 1911--a period in our history long before the 1950's and 1960's when Congress enacted the voting rights legislation that recognized the central importance of protecting minority access to the polls. It was only then that an important federal interest in prohibiting at-large voting, particularly in States like Mississippi, became a matter of congressional concern. This intervening and dramatic historical change significantly lessens the relevance of these earlier statutes to the present analysis. Moreover, her analysis of the implied repeal issue apparently assumes that if two provisions could coexist in the same statute, one could not impliedly repeal the other if they were enacted in successive statutes. Thus, she makes no comment on the proviso in the 1967 statute that preserved at-large elections in New Mexico and Hawaii for 1968. This proviso surely supports the conclusion that it was the only exception intended by Congress from the otherwise total prohibition of at-large elections. The authorization of at-large elections in the 1882 statute cited by Justice O'Connor was also set forth in a proviso; although the words "provided that" are omitted from the 1891, 1901, and 1911 statutes, they just contain examples of differently worded exceptions from a general rule. It is also important to note that the text of the 1967 statute, unlike the four earlier statutes, uses the word "only" to create a categorical prohibition against at-large elections. As a matter of plain English, the conflict between that prohibition and §2a(c) which permitted at-large elections, is surely irreconcilable. Justice O'Connor's consideration of the legislative history of the 1967 statute fails to give appropriate consideration to the four bills that would have expressly repealed §2a(c)(5). See supra, at 4-7. Those bills, coupled with the absence of any expression by anyone involved in the protracted legislative process of an intent to preserve at-large elections anywhere except in New Mexico and Hawaii, provide powerful support for the conclusion that, as a literal reading of the text of §2c plainly states, Congress intended to enact a categorical prohibition of at-large elections. The odd circumstance that the final version of the prohibition was added to a private bill makes it quite clear that the omission of a clause expressly repealing §2a(c) was simply an inadvertence. Canons of statutory construction--such as the presumption against implied repeals or the presumption against pre-emption--are often less reliable guides in the search for congressional intent than a page or two of history. * * * The history of the 1967 statute, coupled with the plain language of its text, leads to only one conclusion--Congress impliedly repealed §2a(c). It is far wiser to give effect to the manifest intent of Congress than, as the plurality attempts, to engage in tortured judicial legislation to preserve a remnant of an obsolete federal statute and an equally obsolete state statute. Accordingly, while I concur in the Court's judgment and opinion, I do not join Parts III-B or IV of the plurality opinion. BEATRICE BRANCH, etal., APPELLANTS 01-1437v. JOHN ROBERT SMITH etal. JOHN ROBERT SMITH, etal., APPELLANTS 01-1596v. BEATRICE BRANCH etal. on appeals from the united states district court forthe southern district of mississippi [March 31, 2003] Justice O'Connor, with whom Justice Thomas joins, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion because I agree that the Mississippi Chancery Court's redistricting plan lacks preclearance. I join Part II-C because it is consistent with our decisions holding that federal courts should not rule on a constitutional challenge to a non-precleared voting change when the change is not yet capable of implementation. See, e.g., Connor v. Waller, 421 U.S. 656 (1975) (per curiam); see also ante, p.1 (Kennedy, J., concurring). I cannot join Part III or Part IV, however, because I disagree with the Court that 2 U.S.C. §2c is a command to the States and I disagree with the plurality regarding the proper statutory construction of §2a(c)(5). I First, I agree with the plurality's somewhat reluctant conclusion that §2c does not impliedly repeal §2a(c)(5). Here, it is quite easy to read §§2c and 2a(c) together. A natural statutory reading of §2a(c) gives force to both §§2c and 2a(c): Section 2a(c) applies "[u]ntil a State is redistricted in the manner provided by the law thereof." Section 2c applies after a State has "redistricted in the manner provided by the law thereof." As both the plurality and Justice Stevens recognize, an implied repeal can exist only if the "provisions in the two acts are in irreconcilable conflict" or if "the later act covers the whole subject of the earlier one and is clearly intended as a substitute." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). See also ante, at 17 (plurality opinion); ante, at 2 (Stevens, J., concurring in part and concurring in judgment). Indeed, "'when two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.'" Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). We have not found any implied repeal of a statute since 1975. See Gordon v. New York Stock Exchange, Inc., 422 U.S. 659. And outside the antitrust context, we appear not to have found an implied repeal of a statute since 1917. See Lewis v. United States, 244 U.S. 134. Because it is not difficult to read §§2a(c) and 2c in a manner that gives force to both statutes, §2c cannot impliedly repeal §2a(c). See, e.g., United States v. Burroughs, 289 U.S. 159, 164 (1933) ("[I]f effect can reasonably be given to both statutes, the presumption is that the earlier is intended to remain in force"); Radzanower v. Touche Ross & Co., supra, at 155 ("Repeal is to be regarded as implied only if necessary to make the [later enacted law] work, and even then only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes" (alteration in original and internal quotation marks omitted)). The previous versions of §§2c and 2a(c) confirm that an implied repeal does not exist here. Since 1882, versions of §§2c and 2a(c) have coexisted. Indeed, the 1882, 1891, 1901, and 1911 apportionment statutes all contained the single-member district requirement as well as the at-large default requirement. Compare Act of Feb. 25, 1882, ch. 20, §3, 22 Stat. 6 ("[T]he number to which such State may be entitled ... shall be elected by Districts ..., no one District electing more than one Representative" (emphasis added)) with ibid. (" ... shall be elected at large, unless the Legislatures of said States have provided or shall otherwise provide before the time fixed by law for the next election of Representatives therein" (emphasis added)); Act of Feb. 7, 1891, ch. 116, §3, 26 Stat. 735 ("[T]he number to which such State may be entitled ... shall be elected by districts" and "[t]he said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no one district electing more than one Representative" (emphasis added)) with §4, 26 Stat. 736 ("[S]uch additional Representative or Representatives shall be elected by the State at large" (emphasis added)); Act of Jan. 16, 1901, ch. 93, §3, 31 Stat. 734 ("[T]he number to which such State may be entitled ... shall be elected by districts" and "[t]he said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no one district electing more than one Representative" (emphasis added)) with §4, 31 Stat. 734 ("[I]f the number hereby provided for shall in any State be less than it was before the change hereby made, then the whole number to such State hereby provided for shall be elected at large, unless the legislatures of said States have provided or shall otherwise provide before the time fixed by law for the next election of Representatives therein" (emphasis added)); Act of Aug. 8, 1911, ch. 5, §3, 37 Stat. 14 ("[T]he Representatives ... shall be elected by districts" and "[t]he said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no one district electing more than one Representative" (emphasis added)) with §4, 37 Stat. 14 ("[S]uch additional Representative or Representatives shall be elected by the State at large ... until such State shall be redistricted in the manner provided by the laws thereof"). Justice Stevens attempts to distinguish the prior versions of §2a(c) because they contained slightly different language than the present version of §2a(c). See ante, at 8. Even assuming, however, that the 1882 version of §2a(c) is slightly different from the present version, the versions of §2a(c) in effect in 1891, 1901, and 1911 are materially indistinguishable from the present version. Indeed, the 1911 statute--the one in effect at the time Congress enacted the present version of §2a(c)--is almost word for word the same as the current statute. Compare Act of Aug. 8, 1911, ch. 5, §4, 37 Stat. 14 ("until such State shall be redistricted in the manner provided by the laws thereof"), with 2 U.S.C. §2a(c) ("[u]ntil a State is redistricted in the manner provided by the law therof"). See also Smiley v. Holm, 285 U.S. 355, 374 (1932) (noting that the 1911 version of §2a(c) would apply "unless and until new districts are created"). Given this history of the two provisions coexisting in the same statute, I would not hold that §2c impliedly repeals §2a(c). The two statutes are "capable of co-existence" because each covers a different subject matter. Morton v. Mancari, supra, at 551. Section 2c was not intended to cover the whole subject of §2a(c) and was not "clearly intended as a substitute" for §2a(c). Posadas v. National City Bank, supra, at 503. Section 2a(c) (requiring at-large elections) applies unless or until the State redistricts, and §2c (requiring single-member districts) applies once the State has completed the redistricting process. This Court has in fact read the prior versions of §§2c and 2a(c) so that the two did not conflict. In Smiley v. Holm, supra, we recognized that under the 1911 version of these provisions, at-large elections were an appropriate remedy if the State was not properly redistricted in the first instance. See id., at 374 ("[U]nless and until new districts are created, all representatives allotted to the State must be elected by the State at large"). When the 1911 statute expired in 1929, Congress did not reenact it. Instead, Congress passed §2a(c), which took effect in 1941. Because §2a(c) concerned only at-large elections, no complementary single-member district requirement existed from 1941 until 1967. In 1967, Congress enacted §2c, which states in relevant part: "[T]here shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ...." The relevant language of this statute tracks the language of the prior versions of §2c. Justice Stevens' only distinction between the prior versions of §2c and this version of §2c is that Congress added the word "only" to the latest version of §2c. See ante, at 4. But this one word is a thin reed on which to rest an implied repeal. Justice Stevens would hold that instead of expressly repealing §2a(c), Congress added the word "only" to §2c. This one-word addition that does not change the meaning of the statute is no basis for finding an implied repeal. Justice Stevens argues that Congress intended to "'cove[r] the whole subject'" of at-large redistricting when it enacted §2c in 1967. Ante, at 3 (quoting Posadas v. National City Bank, 419 U.S. 102, 134 (1974) ("'Presumably Congress had given serious thought to the earlier statute .... Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature's using language showing that it has made a considered determination to that end'"). Justice Stevens' strongest argument is that the legislative history indicates that "all parties involved were operating under the belief that the changes they were debating would completely replace §2a(c)." Ante, at 7. Yet Justice Stevens acknowledges that Congress could have expressly repealed §2a(c). See ante, at 4, 8. Justice Stevens thinks the evidence that Congress tried to expressly repeal §2a(c) four times cuts strongly in favor of an implied repeal here. See ante, at 8. But these four attempts to repeal §2a(c) were unsuccessful. It is difficult to conclude that Congress can impliedly repeal a statute when it deliberately chose not to expressly repeal that statute. In this case, where the two provisions have co-existed historically, and where Congress explicitly rejected an express repeal of §2a(c), I would not find an implied repeal of §2a(c). I would hold instead that Congress passed §2c in 1967 to restore redistricting law to its pre-1941 status, when §2a(c) became effective without any complementary provision regarding single-member districts. The floor statements and colloquy by Senators Baker and Bayh cited by Justice Stevens, see ante, at 6-7, n.5, cannot overcome the strong presumption against implied repeals, especially given the historical evidence that §§2c and 2a(c) had peacefully coexisted since the 19th century. And as explained in more detail in Part II-B, infra, the circumstances leading up to the passage of §2c in 1967 do not support a finding of implied repeal. In short, because §§2a(c)(5) and 2c are capable of co-existence, and because the history shows that §2c does not cover the whole subject of §2a(c), I agree with the plurality that §2c does not impliedly repeal §2a(c), and therefore that §2a(c) "continues to apply." Ante, at 18. II A Although the plurality acknowledges that §2a(c) remains in full force, it inexplicably adopts a reading of §2a(c) that has no textual basis. Under §2a(c)(5), the State must conduct at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof." Instead of simply reading the plain text of the statute, however, the plurality invents its own version of the text of §2a(c). The plurality holds that "[u]ntil a State is redistricted ..." means "[u]ntil ... the election is so imminent that no entity competent to complete redistricting pursuant ... to the mandate of §2c [] is able to do so without disrupting the election process." Ante, at 19. But such a reading is not faithful to the text of the statute. Like Justice Stevens, I believe that the Court's interpretation of §2a(c) is nothing more than "tortured judicial legislation." Ante, at 9. See also Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L.Rev. 1175, 1185 (1989) ("[W]hen one does not have a solid textual anchor oran established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation"). Dictionary definitions confirm what the plain text says: "Until a State is redistricted in the manner provided by the law thereof" means "[u]ntil a State is redistricted in the manner provided by the law thereof." The meaning of the word "until" is not difficult to understand, nor is it some specialized term of art. See Webster's New International Dictionary 2794 (2d ed. 1957) (defining "until" to mean "[d]uring the whole time before"); Webster's Collegiate Dictionary 1297 (10th ed. 1993) (defining "until" to mean "up to such time as" or "[b]efore"). The word "redistricted" also is not hard to comprehend. Id., at 980 (defining "redistrict" to mean "to divide anew into districts"); Black's Law Dictionary 1283 (7th ed. 1999) (defining "redistrict" to mean "[t]o organize into new districts, esp. legislative ones; reapportion"). While the Court employs dictionary definitions to interpret §5 of the Voting Rights Act of 1965, see ante, at 8, it notably refrains from using any dictionary definition for §2a(c). Section 2a(c) contains no imminence requirement. It is not credible to say that "until a State is redistricted in the manner provided by the law thereof after any apportionment" means: "[u]ntil ... the election is so imminent that no entity competent to complete redistricting pursuant to ... the mandate of §2c [] is able to do so without disrupting the election process." Ante, at 19. The plurality characterizes §2a(c) as a "stopgap provisio[n]," but the text of §2a(c) is not so limited. Ibid. The plurality asks "[h]ow long is a court to await that redistricting before determining that §2a(c) governs a forthcoming election?" Ibid. Yet the text provides no basis for why the plurality would ask such a question. Indeed, the text tells us "how long" §2a(c) should govern: "until a State is redistricted in the manner provided by the law thereof." (Emphasis added.) Under the plurality's reading, however, §2a(c) would not apply even though §2a(c) by its terms should apply, as the State has not yet "redistricted in the manner provided by the law thereof." The language of the statute cannot bear such a reading. Cf. Holloway v. United States, 526 U.S. 1, 14 (1999) (Scalia, J., dissenting) ("No amount of rationalization can change the reality of this normal (and as far as I know exclusive) English usage. The word in the statute simply will not bear the meaning that the Court assigns"). The dispositive question is what the text says it is: Has a State "redistricted in the manner provided by the law thereof"? 2 U.S.C. §2a(c). "Until a State is redistricted in the manner provided by the law thereof after any apportionment," a court cannot draw single-member districts. Ibid. (emphasis added). The court must apply the terms of §2a(c) and order at-large elections. If, however, the State is redistricted "in the manner provided by the law thereof," §2c applies. Thus, after a State has been redistricted, if a court determines that the redistricting violates the Constitution or the Voting Rights Act, the correct remedy for such a violation is the §2c procedure of drawing single-member districts that comport with federal statutory law and the Constitution. But "[u]ntil a State is redistricted in the manner provided by the law thereof," §2a(c)(5) mandates that a court order at-large elections. In short, a court should enforce §2a(c) before a "State is redistricted in the manner provided by the law thereof," and a court should enforce §2c after a State has been "redistricted in the manner provided by the law thereof." The plurality seems to forget that in cases such as this one, a federal court has the power to redistrict only because private parties have alleged a violation of the Constitution or the Voting Rights Act. Sections 2a(c) and 2c do not create independently enforceable private rights of action themselves. Rather, both these provisions address the remedy that a federal court must order if it finds a violation of a constitutional or statutory right.1 The federal plaintiffs in this case alleged a constitutional violation, and the federal court drew a plan to remedy that violation. Having found a constitutional violation, the federal court was required to fashion the appropriate remedy of §2c or §2a(c) depending on whether the "State is redistricted in the manner provided by the law thereof." 2 U.S.C. §2a(c). The plurality's reading of §2a(c) also fails on its own terms. As the plurality appears to acknowledge, ante, at 21, the plain text of §2a(c) requires courts to apply §2a(c) before applying §2c. Yet the plurality never justifies why, when it is interpreting §2a(c), it looks to §2c instead of reading the plain language of §2a(c) itself. If state law really includes federal law, as the Court maintains, both §§2c and 2a(c) are equally applicable. The text of §2a(c) directs federal courts to order at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof." In deciding whether §2c or §2a(c) is applicable, it is no answer to escape the directive of §2a(c) by pointing to the text of §2c. Indeed, if one takes at face value the plurality's statement that §2a(c) "continues to apply," ante, at 18, a court should not look at §2c until the State complies with the terms of §2a(c). Section 2a(c) is antecedent to §2c, since §2a(c) defines when at-large elections are appropriate. Moreover, the Court's interpretation of the interplay between §§2a(c) and 2c calls into question this Court's anti-commandeering jurisprudence. See, e.g., New York v. United States, 505 U.S. 144, 166 (1992) ("We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts"); and Printz v. United States, 521 U.S. 898, 912 (1997) ([S]tate legislatures are not subject to federal direction") (Scalia, J.). The plurality states that the anticommandeering jurisprudence is inapplicable to Article I, §4, because that section gives Congress the power to "Regulat[e]" the times, places, and manner of holding congressional elections. But of course, Article I, §8, uses similar language when it authorizes Congress to "regulate Commerce ... among the several States." Whether the anticommandeering principle of New York and Printz is as robust in the Article I, §4, context (the font of congressional authority here) as it is in the Article I, §8, context (the source of congressional authority in those cases) is a question that need not be definitively resolved here. In any event, the canon of constitutional avoidance counsels strongly against the reading of §§2c and 2a(c) adopted in Parts III and IV of the principal opinion. The Court's reading of §2c, see ante, at 15-16--also adopted by Justice Stevens--invites a future facial attack to the constitutional validity of §2c.2 The history of the prior versions of §2c shows that §2c has never been treated as an absolute command. States routinely used at-large elections under the previous iterations of §2c, even though those versions of §2c also stated that Representatives "shall be elected by districts." Act of June 25, 1842, ch 47, §2, 5 Stat. 491; Act of July 14, 1862, ch. 170, 12 Stat. 572; Act of Feb. 2, 1872, 17 Stat. 28; cf. supra, at 3-4 (documenting the 1882, 1891, 1901, and 1911 versions of §2c). See also K. Martis, Historical Atlas of United States Congressional Districts 1789-1983, pp.4, 6 (1982) (hereinafter Martis) (documenting 36 States that used at-large elections from the 28th Congress--after Congress passed the first version of §2c in 1842--through the 70th Congress, when the last version of §2c expired in 1929).3 Indeed, in every Congress from 1843 until 1929, at least one State used some form of at-large representation. Unless the Court is willing to say that these States openly flouted federal law, the only way to read this history is to acknowledge that §2c is not a statutory command. But see ante, at 19 (plurality opinion) (§2c is a "statutory comman[d]"). Rather, §2c and its predecessors tell States what type of redistricting legislation they are allowed to pass (all others being prohibited). This reading also comports with the pre-1842 history of congressional elections. Before Congress passed its first version of §2c in 1842, States routinely would elect more than one individual from a specific district. See Martis 4-5 (listing five States--Maryland, Massachusetts, New Jersey, New York, and Pennsylvania--that used multimember districts from the 3d Congress in 1793 through the 27th Congress in 1842). After the first version of §2c went into effect, however, States could no longer use multimember districts. Rather, States could either redistrict using single-member districts or use at-large elections. In short, §2c does not tell States that they must pass redistricting legislation. Section 2c is instead a restriction on the type of legislation that a State may pass--a restriction completely consistent with New York and Printz. And §2a(c) provides that at-large elections will be the default mechanism if States choose not to pass redistricting legislation. An interpretation of §2a(c) which mandates that courts order at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof" does not mean that once a redistricting plan is in effect, §2a(c) applies if a court later deems the apportionment plan invalid. The words of §2a(c) specifically refer to the process in which the State redistricts: "in the manner provided by the law thereof." Section 2a(c) is no longer implicated after the State finishes its process of redistricting "in the manner provided by the law thereof after any apportionment." When all required action by the State is complete, and when the state plan first becomes effective, the "State is redistricted in the manner provided by the law thereof." Ibid. B Because the plurality's construction of §2a(c) has no statutory basis, the only way to understand the Court's opinion is that the Court is overlooking the words of the statute for nontextual prudential reasons. Cf. A. Scalia, A Matter of Interpretation 18-23 (1997) (discussing the case of Church of Holy Trinity v. United States, 143 U.S. 457 (1892), and noting that "Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former"). The only other prudential reason why the plurality would distort the plain text of §2a(c) is to hold sub silentio that §2c impliedly repeals §2a(c). Why else would the plurality note the "tension" between the two statutes, ante, at 17, note that "[t]here is something to be said for [the implied repeal] position," ibid., and engage in such a long exegesis about the historical context surrounding the enactment of §2c? See ante, at 12-15 (majority opinion). The plurality adopts the reading of §2a(c) proposed by one District Court in a 1982 decision. See Carstens v. Lamm, 543 F.Supp. 68 (Colo. 1982). As the United States recognizes in its brief, the reasoning of Carstens is nothing less than a partial implied repeal of §2a(c). See Brief for United States as Amicus Curiae 29. ("Section 2c's unequivocal mandate that Members of the House of Representatives should be elected from single-member districts (except where exigencies of time render that impracticable, see Carston [sic] v. Lamm, supra) resolves that problem. It creates a workable and sensible regime that faithfully fulfills Congress's purpose when it enacted Section 2c in 1967"); see also id., at 10 ("While ... repeal by implication is disfavored, so is failure to give a later-enacted statute the full scope that its terms require"). Moreover, neither the plurality nor Justice Stevens can rely on the historical context of the pre-1967 cases to support their interpretations of §§2a(c) and 2c. This history in fact cuts against them. It is true that before 1967, some district courts threatened to impose at-large elections if the state redistricting plan were ruled unconstitutional. See ante, at 13 (majority opinion) (citing cases). In all these cases, however, a legislature had already redistricted "in the manner provided by the law thereof." 2 U.S.C. §2a(c).4 Thus, Congress' response in enacting §2(c) cannot be read to target anything more than situations in which a State had already "redistricted in the manner provided by the law thereof." And of course, once a State was redistricted in this manner, §2a(c) by its terms would not apply. If anything, the enactment of §2c in 1967 clarified that the statutory balance between §§2c and 2a(c) that had existed in prior versions of the statute would continue to exist. The cases cited by the Court do not resolve the question of what happens when a State fails to redistrict "in the manner provided by the law thereof." 2 U.S.C. §2a(c). The Court itself describes these pre-1967 cases as decisions where the courts "are remedying a failure to redistrict constitutionally." Ante, at 14. I agree with the Court that when a court strikes down a State's apportionment plan, §2c mandates that a court "draw single-member districts whenever possible." Ibid. The historical context confirms that once a State is redistricted, and the court rules that the plan is unconstitutional, §2c ensures that courts not order at-large elections. Because in these pre-1967 cases the legislature had redistricted "in the manner provided by the law thereof," §2a(c) was not applicable. Thus, the Court cannot rely on these pre-1967 cases to support the notion that the historical context surrounding the enactment of §2c renders §2a(c) toothless. Indeed, it is unclear why the Court examines this historical context at all. Cf. Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in judgment) ("In my view a law means what its text most appropriately conveys, whatever the Congress that enacted it might have 'intended.' The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it"). The Court also implies that it reads §2a(c) in the way it does because our decisions in Baker v. Carr, 369 U.S. 186 (1962), Wesberry v. Sanders, 376 U.S. 1 (1964), and Reynolds v. Sims, 377 U.S. 533 (1964), "ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards." Ante, at 12. For Justice Stevens, these decisions explain why Congress passed §2c. See ante, at 4, 6-7. But these watershed opinions cannot change the meaning of §2a(c). First, a later development cannot change an unamended statute. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 780-784 (2000) (Scalia, J.). Since §2a(c) was enacted decades before the Baker line of cases, this subsequent development cannot change the interpretation of §2a(c). Second, the Court's decision in Baker v. Carr, supra, rested in large part on the fact that courts were already involved in overseeing apportionment cases. Courts had been "directing" redistricting disputes since well before Baker. Ante, at 12. Indeed, the Court in Baker specifically acknowledged that "[a]n unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature." 328 U.S. 549 (1946)). In Smiley v. Holm, 285 U.S., at 375, for example, we specifically reached the redistricting question, and held that the prior versions of §§2c and 2a(c) mandated at-large elections "in the absence of a redistricting act." We held that at-large elections were required "in order to afford the representation to which the State is constitutionally entitled, and the general provisions of the Act of 1911 cannot be regarded as intended to have a different import." Ibid. In Wood v. Broom, 287 U.S. 1 (1932), the Court ruled on an issue strikingly similar to that in front of the Court today: the effect of the prior versions of §§2c and 2a(c) when the Mississippi congressional delegation was reduced by one seat. In fact, the District Court in Wood made a ruling on statutory grounds that would mirror the post-Baker constitutional review: "The District Court held that the new districts, created by the redistricting act, were not composed of compact and contiguous territory, having as nearly as practicable the same number of inhabitants, and hence failed to comply with the mandatory requirements of §3 of the Act of August 8, 1911." 287 U.S., at 5. See also Hume v. Mahan, 1 F.Supp. 142 (ED Ky. 1932). Likewise, before Baker, state courts had enforced prior versions of §§2c and 2a(c). See, e.g., Moran v. Bowley, 347 Ill. 148, 179 N.E. 526 (1932); State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W. 2d 533 (1932). In short, while Baker and its progeny expanded the scope of federal court review, these cases did not change the fact that this Court recognized federal court jurisdiction over this subject matter at the time of §2a(c)'s enactment. Therefore, the Baker line of cases could not have caused §2a(c) to magically change meaning. The plurality also seems to base its sub silentio holding of implied repeal on the fact that "[e]ighty percent" of §2a(c) is "dead letter." Ante, at 17. But even assuming that the first four parts of §2a(c) are currently unconstitutional, they were not necessarily unconstitutional when Congress passed §2c in 1967. For instance, §2a(c)(1) specifies that "[i]f there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State." While it is true today that no district could in all probability remain exactly the same after an apportionment, it was not true in 1967. This Court did not hold that a strict zero-deviation rule applied to redistricting cases until the 1983 decision of Karcher v. Daggett, 462 U.S. 725. Indeed, the decision of this Court in Wesberry v. Sanders, supra, stated only that congressional districts must be equal to each other "as nearly as is practicable." Id., at 7-8. As Justice Stevens points out, after Wesberry, the House passed a bill in 1965 permitting congressional districts to deviate by as much as 15%. See ante, at 4-5. In 1967, in the same Congress that passed §2c, the House passed a bill permitting congressional districts to deviate by as much as 10%. See ante, at 5. And it appears that at least with the State of New Mexico, the congressional apportionment plan did not change after the 1970 census. See Martis247 (noting that New Mexico used its 1968 districting plan from the 91st through the 97th Congresses--in other words, from 1968 through 1983). These same principles also explain why as of 1967, §§2a(c)(2), 2a(c)(3), and 2a(c)(4) were similarly constitutional. Even if parts of §2a(c) would be unconstitutional today, a court can redistrict the existing district lines to make the districts constitutional while ordering an at-large election for the additional Representatives. Indeed, this approach best accords with the principle that a federal court's "modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect." Upham v. Seamon, 456 U.S. 37, 43 (1982) (per curiam). And even if only §2a(c)(5) were constitutional, the plurality correctly recognizes that §2a(c)(5) is easily severable from the rest of the statute. See ante, at 17. Finally, the fact that a court must enter an order under §2a(c)(5) mandating at-large elections does not necessarily mean that the plan would violate §§2 or 5 of the Voting Rights Act, 42 U.S.C. §§1973, 1973c, or that traditional winner-take-all elections are required on a statewide basis. Rather, as cross-appellants acknowledge, Brief for Cross-Appellants in No. 01-1596, pp.27-28, Tr. of Oral. Arg. 47-48, a court could design an at-large election plan that awards seats on a cumulative basis, or by some other method that would result in a plan that satisfies the Voting Rights Act. Cf. Growe v. Emison, 507 U.S. 25, 40 (1993); Rogers v. Lodge, 458 U.S. 613, 616-617 (1982); Holder v. Hall, 512 U.S. 874, 897-898, 908-912 (1994) (Thomas, J., concurring in judgment); Dillard v. Chilton County Bd. of Ed., 699 F.Supp. 870 (MD Ala. 1988); see also S. Issacharoff, P. Karlan, & R. Pildes, The Law of Democracy 1091-1151 (rev. 2d ed. 2002); Pildes & Donoghue, Cumulative Voting in the United States, 1995 U. Chi. Legal F. 241, 251-257. In short, I cannot agree that the phrase "[u]ntil a State is redistricted in the manner provided by the law thereof" contains any sort of "imminence" requirement, a requirement without any statutory mooring. And although the plurality claims to hold that §2c does not impliedly repeal §2a(c), the plurality's opinion makes sense only if §2c serves as a partial implied repeal of §2a(c). It is difficult to say, as the plurality does, that §2a(c) "continues to apply," ante, at 18, and also to say, as the plurality does, that §2a(c) applies only if "the election is so imminent that no entity competent to complete redistricting pursuant to ... the mandate of §2c [] is able to do so without disrupting the election process." Ante, at 19. Unless and until Congress expressly repeals §2a(c), I would hold that federal courts are required to order some form of at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment." III Having concluded that §2a(c) applies "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," it is necessary to consider the question that the Court intentionally avoids: whether the State of Mississippi here has been "redistricted in the manner provided by the law thereof." If it has not, §2a(c) applies, and the District Court should have ordered at-large elections. If it has been "redistricted," the District Court was correct to draw single-member districts under §2c. Under this Court's consistent case law, and under Mississippi state law, a State is not "redistricted" until the apportionment plan has been precleared under §5 of the Voting Rights Act, 42 U.S.C. §1973c. Because Mississippi's plan has not been precleared, I would hold that §2a(c) applies. We have held that a "new reapportionment plan enacted by a State ... will not be considered 'effective as law,' until it has been submitted and has received clearance under §5." Wise v. Lipscomb, 437 U.S. 535, 542 (1978) (plurality opinion) (quoting Connor v. Finch, 431 U.S. 407, 412 (1977)) (citation omitted). Accord, Connor v. Waller, 432 U.S. 491, 501-502 (1977) ("Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that legislation conforms to the Constitution and to the provisions of the Voting Rights Act"); Clark v. Roemer, 500 U.S. 646, 652 (1991); Hathorn v. Lovorn, 457 U.S. 255, 269 (1982) ("Our opinions repeatedly note that failure to follow [the preclearance procedures] renders the change unenforceable"). Indeed, in Hathorn v. Lovorn, we held that Mississippi itself could "not further implement [a] change until the parties comply with §5." Id., at 270. Preclearance is the final step in the process of redistricting. If the apportionment plan is not precleared, it is not "effective as law," and cannot be implemented. Under our case law, then, a State is only redistricted once the clearance process is complete. Before a covered jurisdiction receives clearance, the Federal Government may force the State to make changes to the redistricting plan. Once a State receives preclearance, it may implement a voting change. The Mississippi Supreme Court has recognized that the redistricting process is not complete until the apportionment plan is cleared: "Voting changes subject to §5 'will not be effective as law until and unless cleared.'" Inre McMillin, 642 So.2d 1336, 1339 (Miss. 1994) (quoting Connor v. Waller, supra, at 656). In McMillan, the Mississippi Supreme Court held that a plan for nonpartisan judicial elections passed by the legislature was not yet effective because it had not been precleared. 642 So.2d, at 1339. Consequently, the court ordered elections to occur under the old plan, which required partisan judicial elections. See ibid. ("Consequently, the statutes currently governing primary judicial elections and setting such elections for Tuesday, June 7, 1994, are the only enforceable provisions regarding said primaries"). Thus, despite the fact that the legislature had passed a law mandating nonpartisan judicial elections, despite the fact that the new law expressly repealed the old law, despite the fact that the Governor had signed the law, and despite the fact that the State had submitted the new law to the United States Attorney General for preclearance under §5, this new law was not operative for one reason: The United States Attorney General had not precleared this new law by the time of the new primary elections. See id., at 1338. Thus, at least in Mississippi, the old voting plan remains in effect until the new plan has been precleared. Accordingly, the terms of §2a(c)(5) should apply here, and the District Court should have ordered at-large elections for the entire state congressional delegation. Congress can expressly repeal §2a(c) quite easily. But it has not done so. This Court should not presume to act in Congress' stead. And this Court should not read §2a(c) in a manner divorced from any semblance of textual fidelity in order for it to reach what it deems to be the "correct" or more unintrusive result. I therefore respectfully dissent from Part III-A of the Court's opinion and Parts III-B and IV of the plurality opinion. FOOTNOTESFootnote *Together with No. 01-1596, Smith et al. v. Branch etal., also on appeal from the same court. FOOTNOTESFootnote **Contrary to the dissent's assertion, post, at 9-10, n.1, our reading creates no conflict with Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). Here a federal court granted relief on the basis of federal law--specifically, the Federal Constitution. The District Court did not "instruc[t] state officials on how to conform their conduct to state law," Pennhurst, supra, at 106; rather, it deferred to the State's "policies and preferences" for redistricting, White v. Weiser, 412 U. S. 783, 795 (1973). Far from intruding on state sovereignty, such deference respects it. FOOTNOTESFootnote 1Compare Posadas, 514 U.S. 280, 287 (1995) ("[A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U.S. 72, 78-79 (1990), or when state law is in actual conflict with federal law"). Footnote 2The States of Hawaii and New Mexico were the only two States that met the statutory exception because they were "entitled to more than one Representative" and had "in all previous elections elected [their] Representatives at Large." Pub. L. 90-196, 81 Stat. 581. Footnote 3In 1965, the House of Representatives passed a bill identical, in all relevant respects, to the bill Representative Celler introduced in January 1967. See H.R. 5505, 89th Cong., 1st Sess. (1965). Footnote 4Specifically, §2a(c) would have been expressly repealed by the following language, present in all but the final version of H.R. 2508: "That section 22 of the Act of June 18, 1929, entitled 'An Act to provide for the fifteenth and subsequent decennial censuses and to provide for apportionment of Representatives' (46 Stat. 26), as amended, is amended as follows: "Subsection (c) is amended by striking out all of the language in that subsection and inserting in place thereof the following: ...." H.R. 2508, 90th Cong., 1st Sess., 1 (1967). Footnote 5Senator Bayh introduced one amendment to the private bill that excluded Hawaii and New Mexico while Senator Baker offered another that had no exceptions. Senator Bayh characterized his amendment as follows: "What I have tried to do is to take that part of the conference report over which there was no dispute, or a minimal amount of dispute, and attach that part to the bill which is now the pending business." 113 Cong. Rec. 31719 (1967). Senator Baker described his amendment as follows: "The measure makes no other provision. It has nothing to do with gerrymandering. It has nothing to do with compactness. It has nothing to do with census. It strictly provides in a straightforward manner that when there is more than one Member of the House of Representatives from a State, the State must be districted, and that the Members may not run at large. . . . I believe that my amendment is the most straightforward and direct and simple way to get at the most urgent need in the entire field of redistricting, and that is to prevent the several States of the Union from being under the threat of having their Representatives to the U.S. House of Representatives stand for election at large." Id., at 31718. In a colloquy between Senators Bayh and Baker on the floor, they both agreed that the final amendment left no doubt as to its effect: "This will make it mandatory for all Congressmen to be elected by single-Member districts, whether the reapportionment is done by State legislatures or by a Federal court." Id., at 31720 (remarks of Senator Bayh). FOOTNOTESFootnote 1It does not matter whether §2a(c) applies exclusively to legislative redistricting. Under the terms of §2a(c), courts can be involved in the redistricting process. To the extent that courts are part of the "manner provided by the law thereof," courts may redistrict. 2 U.S.C. §2a(c). And contrary to the plurality's interpretation, the text of §2a(c) makes clear that this "manner" refers exclusively to state law. The manner in which a State redistricts can only refer to the process by which a State redistricts. Moreover, the plurality's conflation of state and federal law is in substantial tension with this Court's opinion in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) (delineating a distinction between state and federal law when a federal court enters an injunction). Footnote 2It is just as coercive for Congress to say that if the State does not comply with a legislative command, a federal court will enter an injunction making the State conform with Congress' command. See, e.g., New York v. United States, 505 U.S. 144, 174-177 (1992) (striking down Congress' "take title" provision because the choice between two unconstitutional choices is "no choice at all"). If §2c is not a command, however, a State has the choice between passing redistricting legislation or using at-large elections. Section 2c merely limits the type of remedies that a federal court may adopt in response to a pre-existing violation of federal law. Neither it nor §2a(c) affirmatively provides courts the authority to draw districts absent a violation. Rather, §2a(c) specifies which remedy is appropriate for the constitutional violation. See 2 U.S.C. §2a(c) (a court must order at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof"). Footnote 3Alabama (43d, 44th, 63d, 64th Congresses), Arkansas (43d, 48th Congresses), California (31st-38th, 48th Congresses), Colorado (58th-63d Congresses), Connecticut (58th-62d Congresses), Florida (43d, 63d Congresses), Georgia (28th, 48th Congresses), Iowa (29th Congress), Kansas (43d, 48th, 53d-57th, 59th, 60th Congresses), Idaho (63d-65th Congresses), Illinois (37th-42d, 53d, 63d-70th Congresses), Indiana (43d Congress), Louisiana (43d Congress), New York (43d, 48th Congresses), Maine (48th Congress), Michigan (63d Congress), Minnesota (35th-37th, 63d Congresses), Mississippi (28th, 29th, 33d Congresses), Missouri (28th, 29th Congresses), Montana (63d-65th Congresses), New Hampshire (28th, 29th Congresses), New Mexico (62d Congress), North Carolina (48th Congress), North Dakota (58th-62d Congresses), Ohio (63d Congress), Oklahoma (63d Congress), Pennsylvania (43d, 48th-50th, 53d-57th, 63d-67th Congresses), South Carolina (43d Congress), South Dakota (51st-62d Congresses), Tennessee (43d Congress), Texas (43d, 63d-65th Congresses), Utah (63d Congress), Virginia (48th Congress), Washington (53d-60th, 63dCongresses), West Virginia (63d, 64th Congresses), Wisconsin (30th Congress). Footnote 4See, e.g., Calkins v. Hare, 228 F.Supp. 824, 825 (ED Mich. 1964) ("The plaintiffs have challenged the constitutionality of the congressional districting in this state"); Bush v. Martin, 251 F.Supp. 484, 488 (SD Tex. 1966) ("The question is whether the Texas 1965 Congressional Redistricting Act ... is constitutional"); Park v. Faubus, 238 F.Supp. 62, 63 (ED Ark. 1965) ("It is alleged that Act 5 of the Second Extraordinary Session of the Acts of the General Assembly of the State of Arkansas for the year of 1961, being the Act which divides the State of Arkansas into congressional districts, deprives plaintiff and others similarly situated of their right to vote" (citation omitted)); Preisler v. Secretary of State, 257 F.Supp. 953, 955 (WD Mo. 1966) (The "plaintiffs contest the constitutional validity of Missouri's 1965 Congressional Redistricting Act"); Meeks v. Anderson, 229 F.Supp. 271, 272 (Kan. 1964) ("The action was brought by qualified voters in four of the five Congressional Districts of Kansas, seeking to have Kansas Statutes, which is the last congressional reapportionment by the Kansas Legislature, declared unconstitutional" (citation omitted)); Baker v. Clement, 247 F.Supp. 886, 888 (MD Tenn. 1965) ("This case presents the question of whether the statute creating Tennessee's nine congressional districts violates Article 1, Section 2 of the Constitution of the United States").

liberal

person

civil_rights

1984-031-01

United States Supreme Court UNITED STATES v. DANN(1985) No. 83-1476 Argued: November 5, 1984Decided: February 20, 1985 In 1951, the Shoshone Tribe sought compensation for the loss of aboriginal title to lands in several Western States. The Indian Claims Commission (Commission) entered an interlocutory order holding that aboriginal title had been extinguished and later awarded $26 million in compensation. The Court of Claims affirmed, and the award was certified to the General Accounting Office. Pursuant to 31 U.S.C. 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award, which was then deposited for the Tribe in an interest-bearing trust account in the United States Treasury. The Secretary of the Interior is required by statute, after consulting with the Tribe, to submit to Congress a plan for distribution of the fund, but has not yet done so, owing to the Tribe's refusal to cooperate. Subsequently, the United States brought a trespass action in Federal District Court against respondent Tribe members, alleging that in grazing livestock without a permit on land involved in the prior Commission proceeding respondents were violating certain regulations. Respondents claimed that they have aboriginal title to the land and that thus the Government was precluded from requiring grazing permits. The District Court held that aboriginal title had been extinguished when the Commission's final award was certified for payment. The Court of Appeals reversed, holding that "payment" had not occurred within the meaning of 22(a) of the Indian Claims Commission Act, which provided that "payment of any claim [of an Indian tribe], after its determination in accordance with this [Act], shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." The court reasoned that until a plan of distribution of the fund in question is adopted, there remain significant blocks in the way of delivery to the payee and that thus the "ordinary meaning" of payment was not satisfied. Held: "Payment" occurred under 22(a) when the funds in question were placed by the United States into an account in the Treasury for the Tribe. Pp. 44-50. (a) To hold that payment under 22(a) does not occur until a final plan of distribution has been approved by Congress would frustrate the Indian Claims Commission Act's purpose to dispose of Indian claims with [470 U.S. 39, 40] finality and would also conflict with the Act's purpose of transferring from Congress to the Commission the responsibility for determining the merits of Indian claims. Pp. 45-47. (b) To construe the word "payment" as the Court of Appeals did gives the word a markedly different meaning than it has under the general common-law rule, relied upon in Seminole Nation v. United States, 316 U.S. 286 , that a debtor's payment to a fiduciary for the creditor's benefit satisfies the debt. Here, the Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as beneficiary. Once the money was deposited into the trust account, payment was effected. Pp. 47-50. 706 F.2d 919, reversed and remanded. BRENNAN, J., delivered the opinion for a unanimous Court. Assistant Attorney General McConnell argued the cause for the United States. On the briefs were Solicitor General Lee, Assistant Attorney General Habicht, Joshua I. Schwartz, Jacques B. Gelin, Dean K. Dunsmore, and Robert L. Klarquist. John D. O'Connell argued the cause and filed a brief for respondents. * [Footnote * William T. Finley, Jr., filed a brief for the American Land Title Association as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Indian Law Resource Center by Steven M. Tullberg and Robert T. Coulter; and for the Western Shoshone National Council by Thomas E. Luebben and Richard W. Hughes. JUSTICE BRENNAN delivered the opinion of the Court. The question presented in this case is whether the appropriation of funds into a Treasury account pursuant to 31 U.S.C. 724a (1976 ed., Supp. V) 1 constitutes "payment" [470 U.S. 39, 41] under 22(a) of the Indian Claims Commission Act, 60 Stat. 1055, 25 U.S.C. 70u(a) (1976 ed.). 2 I This case is an episode in a longstanding conflict between the United States and the Shoshone Tribe over title to lands in the western United States. In 1951 certain members of the Shoshone Tribe sought compensation for the loss of aboriginal title 3 to lands located in California, Colorado, Idaho, Nevada, Utah, and Wyoming. 4 Eleven years later, the Indian Claims Commission entered an interlocutory order holding that the aboriginal title of the Western Shoshone had been extinguished in the latter part of the 19th century, [470 U.S. 39, 42] Shoshone Tribe v. United States, 11 Ind. Cl. Comm'n 387, 416 (1962), and later awarded the Western Shoshone in excess of $26 million in compensation. Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm'n 318 (1977). The Court of Claims affirmed this award. 5 Temoak Band of Western Shoshone Indians v. United States, 219 Ct. Cl. 346, 593 F.2d 994 (1979). On December 6, 1979, the Clerk of the Court of Claims certified the Commission's award to the General Accounting Office. Pursuant to 31 U.S.C. 724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award and deposited it for the Tribe in an interest-bearing trust account in the Treasury of the United States. Under 25 U.S.C. 1402 (a) 6 and 1403(a), 7 the Secretary of the Interior is required, after consulting with the Tribe, to submit to Congress within a specified period of time a plan for the distribution of the fund. In this case, the Secretary has yet to submit a plan of distribution of the $26 million owing to the refusal of the Western Shoshone to cooperate in [470 U.S. 39, 43] devising the plan. The fund apparently has now grown to $43 million. Reply Brief for United States 20. In 1974, the United States brought an action in trespass against two sisters, Mary and Carrie Dann, members of an autonomous band 8 of the Western Shoshone, alleging that the Danns, in grazing livestock without a permit from the United States, were acting in violation of regulations issued by the Secretary of the Interior under the authority of the Taylor Grazing Act, 43 U.S.C. 315b. 9 The 5, 120 acres at issue in the suit are located in the northeast corner of Nevada. In response to the United States' suit, the Danns claimed that the land has been in the possession of their family from time immemorial and that their aboriginal title to the land precluded the Government from requiring grazing permits. The United States District Court for the District of Nevada rejected the Danns' argument and ruled that aboriginal title had been extinguished by the collateral-estoppel effect of the Indian Claims Commission's judgment in 1962. United States v. Mary and Carrie Dann, Civil No. R-74-60 (Jan. 5, 1977). The Court of Appeals for the Ninth Circuit reversed and remanded, however, on the ground that "[w]hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the [470 U.S. 39, 44] litigation . . ., the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided." United States v. Dann, 572 F.2d 222, 226-227 (1978). On remand, the District Court held that aboriginal title was extinguished when the final award of the Indian Claims Commission was certified for payment on December 6, 1979. Civil No. R-74-60 (Apr. 25, 1980). On appeal, the Government defended the judgment of the District Court on the ground that the "full discharge" language of 22(a) of the Indian Claims Commission Act, see n. 2, supra, precluded the Danns from raising the defense of aboriginal title. Although Congress had not yet approved a plan for the distribution of the funds to the Western Shoshone, the United States maintained that the requirement of "payment" under 22(a) was satisfied by the congressional appropriation of the $26 million award into the Treasury account. The Danns argued that until Congress approved a plan for the distribution of the money to the Tribe, "payment" was not satisfied. The Court of Appeals held that "payment" had not occurred within the meaning of 22 (a) and reversed the District Court. 706 F.2d 919, 926 (1983). The court reasoned that until a plan of distribution was adopted by the Congress, there remained "significant legal blocks in the way of delivery to the payee," and thus the "ordinary meaning" of payment was not satisfied. We granted certiorari to resolve the question of whether the certification of the award and appropriation under 724a constitutes payment under 22(a). 467 U.S. 1214 (1984). We reverse. II The legislative purposes of the Indian Claims Commission Act and the principles of payment under the common law of trust as they have been applied to the context of relations between native American communities and the United States require that we hold that "payment" occurs under 22(a) when funds are placed by the United States into an account in [470 U.S. 39, 45] the Treasury of the United States for the Tribe pursuant to 31 U.S.C. 724a (1976 ed., Supp. V). A The Indian Claims Commission Act had two purposes. The "chief purpose of the [Act was] to dispose of the Indian claims problem with finality." H. R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). This purpose was effected by the language of 22(a): "When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims . . . ." 10 Section 22(a) also states that the "payment of any claim . . . shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." To hold, as the court below has, that payment does not occur until a final plan of distribution has been approved by Congress would frustrate the purpose of finality by postponing the preclusive effects of 22(a) while subjecting the United States to continued liability for claims and demands that "touch" the matter previously litigated and resolved by the Indian Claims Commission. The second purpose of the Indian Claims Commission Act was to transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims. In the course of hearings on the creation of the Indian Claims Commission, Congressman Henry Jackson, Chairman of the House Committee on Indian Affairs, made this clear: [470 U.S. 39, 46] ". . . [T]he very purpose of this act, the reason we are coming to Congress, is that we are being harassed constantly by various individual pieces of legislation. I do not want to act on separate legislation and Congress is being told to act on those bills, without knowing the facts, and the purpose of this legislation will be to dispose of all those routine claims and let the commission decide what the obligation is of this Government to the Indians; and, acting upon those findings made by the Commission, Congress will appropriate the money." Hearings on H. R. 1198 and H. R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 68 (1945). During the floor debate on the Act, Congressman Jackson observed that the House was acting in response to a study by the Brookings Institution that had concluded that "there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all." 92 Cong. Rec. 5312 (1946). Prior to the adoption of the Indian Claims Commission Act by the House of Representatives, Attorney General Clark issued the following warning: "The bill would provide that when the report of the Commission determining any claimant to be entitled to recover has been filed with the Congress, such report would have the effect of a final judgment to be paid in like manner as are judgments of the Court of Claims. This provision would make the Commission virtually a court with the power to determine claims based both upon legal and moral grounds rather than a fact finding body as an aid to Congress. In view of the vague basis upon which many of the claims presented to the Commission would be predicated, and the extremely novel [470 U.S. 39, 47] character of the functions delegated to the Commission, the question is raised of whether or not the recognition of the claims should not rest finally with Congress. The provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government." Id., at 5311 (letter to Congressman John Cochran in response to his request for the Attorney General's "views with respect to the bill (H. R. 4497) to create a Indian Claims Commission." Id., at 5310). Despite this warning, the House left the language of the Act unchanged. The Senate, however, deleted from the House bill the language that Attorney General Clark asserted would give the decisions of the Indian Claims Commission the effect of a final judgment binding upon Congress. The Conference adopted the House version "in order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed [by the Court of Claims], have the same finality as judgments of the Court of Claims." H. R. Conf. Rep. No. 2693, 79th Cong., 2d Sess., 8 (1946). As enacted, the Indian Claims Commission Act explicitly incorporated this standard of finality in 22(a). The court below justified its decision on the ground that in making "payment" turn on the submission and approval of a final plan of distribution, Congress would have one last opportunity to review the merits of claims litigated before the Indian Claims Commission. 706 F.2d, at 927. This justification for delay obviously conflicts with the purpose of relieving Congress of the burden of having to resolve these claims. B Aside from its departure from the purposes of the Indian Claims Commission Act, the Court of Appeals' interpretation is in conflict with the accepted legal uses of the word "payment" - uses we assume Congress intended to adopt when it [470 U.S. 39, 48] enacted 22(a). To accept the argument of the Court of Appeals would give the word "payment" a meaning that differs markedly from its common-law meaning, which has long been applied by this Court to the relations between native American tribes and the United States. The common law recognizes that payment may be satisfied despite the absence of actual possession of the funds by the creditor. Funds transferred from a debtor to an agent or trustee of the creditor constitute payment, and it is of no consequence that the creditor refuses to accept the funds from the agent or the agent misappropriates the funds. 11 The rationale for this is that fiduciary obligations and the rules of agency so bind the trustee or agent to the creditor (i. e., the beneficiary or principal) as to confer effective control of the funds upon the creditor. The Court has applied these principles to relations between native American communities and the United States. In Seminole Nation v. United States, 316 U.S. 286 (1942), the United States was obligated by treaty to pay annual annuities to members of the Seminole Nation. Instead, the Government transferred the money to the Seminole General Council. Members of the Tribe argued that because the [470 U.S. 39, 49] Seminole General Council had misappropriated the money, the Government had not satisfied its obligation to pay the individual members of the Tribe. In disposing of the case, the Court relied upon the rule that "a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary." Id., at 296. The Court's holding was based on its recognition of the traditional rule that a debtor's payment to a fiduciary of the creditor satisfies the debt. 12 Absent actual knowledge of the fraudulent intent of the trustee - or some other recognized exception to the general rule - the Government's payment to the Council would have discharged its treaty obligations. Ibid. The order remanding the case for purposes of determining whether the Government had fraudulent intent, id., at 300, would have made sense only if the Court believed that, absent such knowledge, the Government's treaty obligations were discharged. The Court's reliance on the general rule in Seminole Nation is authority for our holding that the United States has made "payment" under 22(a). The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a [470 U.S. 39, 50] manner consistent with the best interests of the Tribe. 13 In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected. III The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the "final discharge" of 22 (a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, 14 this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits. The judgment of the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Footnotes [Footnote 1 The statute provided: "There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of . . . awards rendered by the Indian Claims Commission . . . ." [Footnote 2 The statute provided: "When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission. "The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." The Indian Claims Commission was terminated on September 30, 1978, pursuant to 25 U.S.C. 70v (1976 ed.). [Footnote 3 For a discussion of aboriginal title, see Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974); Johnson v. McIntosh, 8 Wheat. 543, 573-574 (1823); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); F. Cohen, Handbook of Federal Indian Law 486-493 (1982). On the theoretical origins of aboriginal rights, see J. Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (1934); Cohen, Spanish Origin of Indian Rights, 31 Geo. L. J. 1 (1942); Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947). [Footnote 4 Section 2 of the Indian Claims Commission Act, 60 Stat. 1050, as amended, 25 U.S.C. 70a (1976 ed.), authorized claims to be brought on behalf of "any Indian tribe, band, or other identifiable group of American Indians" for "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant . . . ." [Footnote 5 Section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054, as amended, 25 U.S.C. 70s(b) (1976 ed.), provided for an appeal to the Court of Claims from any "final determination" of the Indian Claims Commission. [Footnote 6 The statute provides: "Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission . . ., the Secretary of the Interior shall prepare and submit to Congress a plan for the use and distribution of the funds." [Footnote 7 The statute provides: "The Secretary shall prepare a plan which shall best serve the interests of all those entities and individuals entitled to receive funds of each Indian judgment. Prior to the final preparation of the plan, the Secretary shall - "(1) receive and consider any resolution or communication, together with any suggested use or distribution plan, which any affected Indian tribe may wish to submit to him; and "(2) hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members of the Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds . . . ." [Footnote 8 See Steward, The Foundations of Basin-Plateau Shoshonean Society, in Languages and Cultures of Western North America 113, 115 (E. Swanson ed. 1970) ("`[B]and' can have no precise definition. Although it generally signifies cohesion and interaction between families that constitute a group of permanent membership, it may range in size from a few families that are closely related to many families which include some not related, or it may be structured on unilineal or bilateral principles, and interaction between the families may take many forms"). [Footnote 9 The statute provides: "The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees in each case to be fixed or determined from time to time in accordance with governing law." [Footnote 10 On the finality of judgments of the Court of Claims, see 28 U.S.C. 2519 (1976 ed.) ("A final judgment of the Court of Claims against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy"); United States v. O'Grady, 22 Wall. 641, 647 (1875); W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, Part II, pp. 22-25 (1978). [Footnote 11 See G. Bogert, Law of Trusts and Trustees 902 (2d rev. ed. 1982) (footnotes omitted) ("[I]t is now universally the law that the purchaser of trust property from the trustee . . . may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser, in the absence of notice to the contrary, may safely assume that the price will be applied in an appropriate manner as trust property"); 4 A. Scott, Law of Trusts 321 (3d ed. 1967); Stone, Some Legal Problems Involved in the Transmission of Funds, 21 Colum. L. Rev. 507 (1921). See also, the Uniform Fiduciaries Act 2, 7A U. L. A. 135 (1978) ("A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary"). [Footnote 12 The Court's acknowledgment of this general rule is apparent from its citation to 4 G. Bogert, Law of Trusts and Trustees 901 (1935), which stated: "It is now the law that the purchaser of trust property from the trustee, where the trustee has a power to sell and has properly executed his power, may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser may safely assume that the price will be applied in an appropriate manner as trust property, unless special circumstances come to his notice indicating the opposite." [Footnote 13 In suggesting that significant obstacles to the distribution of the money remain despite the transfer of the fund into a trust account, the Court of Appeals failed to recognize the legal strictures ensuring that the money will be applied to the benefit of the Tribe. We have, for example, held that the United States, as a fiduciary, is obligated to make the funds productive and is fully accountable if those funds are converted or mismanaged. See, e. g., United States v. Mitchell, 463 U.S. 206, 226 (1983); United States v. Sioux Nation of Indians, 448 U.S. 371, 408 -409 (1980); United States v. Shoshone Tribe, 304 U.S. 111, 115 -116 (1938); Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937). [Footnote 14 Cramer v. United States, 261 U.S. 219, 227 (1923); United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 357 -358 (1941); see generally Cohen, Original Indian Title, 32 Minn. L. Rev., at 53-54. [470 U.S. 39, 51]

conservative

other

civil_rights

2007-009-01

United States Supreme Court RANDALL WRIGHT, SHERIFF, SHAWANO COUNTY, WISCONSIN v. JOSEPH L. VAN PATTEN(2008) No. 07-212 Argued: Decided: January 7, 2008 Per Curiam. The Court of Appeals for the Seventh Circuit held that respondent Joseph Van Patten was entitled to relief under 28 U.S.C. §2254, reasoning that his lawyer's assistance was presumptively ineffective owing to his participation in a plea hearing by speaker phone. Van Patten v. Deppisch, 434 F.3d 1038 (2006). We granted certiorari, vacated the judgment, and remanded the case for further consideration in light of Carey v. Musladin, 549 U.S. ___ (2006). On remand, the Seventh Circuit adhered to its original decision, concluding that "[n]othing in Musladin requires that our 2006 opinion be changed." Van Patten v. Endicott, 489 F.3d 827, 828 (2007). We grant the petition for certiorari now before us and this time reverse the judgment of the Seventh Circuit. I Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His counsel was not physically present at the plea hearing but was linked to the courtroom by speaker phone. After the state trial court imposed the maximum term of 25 years in prison, Van Patten retained different counsel and moved in the Wisconsin Court of Appeals to withdraw his no-contest plea. The thrust of the motion was that Van Patten's Sixth Amendment right to counsel had been violated by his trial counsel's physical absence from the plea hearing. The Wisconsin Court of Appeals noted that, under state law, a postconviction motion to withdraw a no-contest plea will be granted only if a defendant establishes "manifest injustice" by clear and convincing evidence. See State v. Van Pattten, No. 96-3036-CR (Wis. App., May 28, 1997), App. to Pet. for Cert. A47-A48. While the court acknowledged that "the violation of the defendant's Sixth Amendment right to counsel may constitute a manifest injustice," id., at A48, it found that the absence of Van Patten's lawyer from the plea hearing did not violate his right to counsel: "The plea hearing transcript neither indicates any deficiency in the plea colloquy, nor suggests that Van Patten's attorney's participation by telephone interfered in any way with [Van Patten's] ability to communicate with his attorney about his plea. Van Patten confirmed that he had thoroughly discussed his case and plea decision with his attorney and was satisfied with the legal representation he had received. The court gave Van Patten the opportunity to speak privately with his attorney over the phone if he had questions about the plea, but Van Patten declined. Further, when Van Patten exercised his right to allocution at sentencing, in the personal presence of his attorney, he raised no objection to his plea." Id., at A49-A50. Applying Strickland v. Washington, 466 U.S. 668 (1984), the court concluded that "[t]he record does not support, nor does Van Patten's appellate brief include, any argument that counsel's performance was deficient or prejudicial," No. 96-3036-CR, App. to Pet. for Cert. A51, and denied Van Patten's motion. After the Wisconsin Supreme Court declined further review, Van Patten petitioned for a writ of habeas corpus under 28 U.S.C. §2254 in Federal District Court. The District Court denied relief, but the Court of Appeals for the Seventh Circuit reversed. It held that Van Patten's Sixth Amendment claim should have been resolved, not under Strickland's two-pronged test (which requires a showing of deficient performance and prejudice to the defendant), but under the standard discussed in United States v. Cronic, 466 U.S. 648 (1984) (under which prejudice may be presumed). Although the Seventh Circuit recognized that this case "presents [a] novel ... question," Deppisch, 434 F.3d, at 1040, and conceded that "[u]nder Strickland, it seems clear [that] Van Patten would have no viable claim," id., at 1042, the court concluded that "it is clear to us that Van Patten's case must be resolved under Cronic," id., at 1043. The resolution was in Van Patten's favor. While the prison warden's petition for certiorari was pending, this Court decided Musladin, supra. Musladin had invoked this Court's cases recognizing "that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial," id., at ___ (slip op., at 1). The issue was the significance of these precedents in a case under §2254, which bars relief on any claim "adjudicated on the merits" in state court, unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §2254(d)(1). The prejudicial conduct involved in Musladin was courtroom conduct of private actors. We held that the "inheren[t] prejudic[e]" test, which we thus far have applied only in cases involving government-sponsored conduct, see, e.g., Estelle v. Williams, 425 U.S. 501 (1976); Holbrook v. Flynn, 475 U.S. 560 (1986), did not clearly extend to the conduct of independently acting courtroom spectators. See Musladin, supra, at ___ (slip op., at 5) ("[A]lthough the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators' conduct. Indeed, part of the legal test of Williams and Flynn--asking whether the practices furthered an essential state interest--suggests that those cases apply only to state-sponsored practices"). For that reason, we reversed the Court of Appeals' grant of habeas relief. Musladin's explanation of the "clearly established Federal law" requirement prompted us to remand Van Patten's case to the Seventh Circuit for further consideration. A majority of the panel reaffirmed its original judgment, however, on the ground that "[u]nlike Musladin, this case does not concern an open constitutional question," because "[t]he Supreme Court has long recognized a defendant's right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings." 489 F.3d, at 828. Judge Coffey disagreed, observing that "the United States Supreme Court has never held that an attorney is presumed to be ineffective if he participates in a plea hearing by speaker phone rather than by physical appearance." Ibid. (emphasis deleted). He found that "[t]he Majority Opinion does not comport with Musladin," ibid., and dissented from "the court's erroneous decision to allow" its original opinion "to stand as written," id., at 829. We reach the same conclusion. II Strickland v. Washington, 466 U.S. 668 (1984) ordinarily applies to claims of ineffective assistance of counsel at the plea hearing stage. See Hill v. Lockhart, 474 U.S. 52, 58 (1985) ("[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel"). And it was in a different context that Cronic "recognized a narrow exception to Strickland's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense." Florida v. Nixon, 543 U.S. 175, 190 (2004) (discussing Cronic). Cronic held that a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial," Bell v. Cone, 535 U.S. 685, 695 (2002), when "circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," Cronic, supra, at 658. Cronic, not Strickland, applies "when ... the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," 466 U.S., at 659-660,** and one circumstance warranting the presumption is the "complete denial of counsel," that is, when "counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," id., at 659, and n.25. No decision of this Court, however, squarely addresses the issue in this case, see Deppisch, supra, at 1040 (noting that this case "presents [a] novel ... question"), or clearly establishes that Cronic should replace Strickland in this novel factual context. Our precedents do not clearly hold that counsel's participation by speaker phone should be treated as a "complete denial of counsel," on par with total absence. Even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere telephone contact amounted to total absence or "prevented [counsel] from assisting the accused," so as to entail application of Cronic. The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time. Cf. United States v. Gonzalez-Lopez, 548 U.S. ___, ___ (2006) (slip op., at 7) (Sixth Amendment ensures "effective (not mistake-free) representation" (emphasis in original)). Our cases provide no categorical answer to this question, and for that matter the several proceedings in this case hardly point toward one. The Wisconsin Court of Appeals held counsel's performance by speaker phone to be constitutionally effective; neither the Magistrate Judge, the District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh Circuit itself stated that "[u]nder Strickland, it seems clear Van Patten would have no viable claim." Deppisch, 434 F.3d, at 1042. Because our cases give no clear answer to the question presented, let alone one in Van Patten's favor, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" Musladin, 549 U.S., at ___ (slip op., at 6) (quoting 28 U.S.C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized. *  *  * Petitioner tells us that "[i]n urging review, [the State] does not condone, recommend, or encourage the practice of defense counsel assisting clients by telephone rather than in person at court proceedings, even in nonadversarial hearings such as the plea hearing in this case," Pet. for Cert. 5, and he acknowledges that "[p]erhaps, under similar facts in a direct federal appeal, the Seventh Circuit could have properly reached the same result it reached here," ibid. Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. RANDALL WRIGHT, SHERIFF, SHAWANO COUNTY, WISCONSIN v. JOSEPH L. VAN PATTEN on petition for writ of certiorari to the united states court of appeals for the seventh circuit No. 07-212. Decided January 7, 2008 Justice Stevens, concurring in the judgment. An unfortunate drafting error in the Court's opinion in United States v. Cronic, 466 U.S. 648 (1984), makes it necessary to join the Court's judgment in this case. In Cronic, this Court explained that some violations of the right to counsel arise in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id., at 658. One such circumstance exists when the accused is "denied the presence of counsel at a critical stage of the prosecution." Id., at 662. We noted that the "presence" of lawyers "is essential because they are the means through which the other rights of the person on trial are secured." Id., at 653. Regrettably, Cronic did not "clearly establish" the full scope of the defendant's right to the presence of an attorney. See 28 U.S.C. §2254(d)(1). The Court of Appeals apparently read "the presence of counsel" in Cronic to mean "the presence of counsel in open court." Initially, all three judges on the panel assumed that the constitutional right at stake was the right to have counsel by one's side at all critical stages of the proceeding.** See also Van Patten v. Deppisch, No. 04-1276, 2006 U.S. App. LEXIS 5147 (CA7, Feb. 27, 2006) (noting that no member of the Seventh Circuit requested a vote on the warden's petition for rehearing en banc). In my view, this interpretation is correct. The fact that in 1984, when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author's failure to add the words "in open court" after the word "present." As the Court explains today, however, the question is not the reasonableness of the federal court's interpretation of Cronic, but rather whether the Wisconsin court's narrower reading of that opinion was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000). In light of Cronic's references to the "complete denial of counsel" and "totally absent" counsel, 466 U.S., at 659, and n. 25, and the opinion's failure to state more explicitly that the defendant is entitled to "the presence of counsel [in open court]," id., at 662, I acquiesce in this Court's conclusion that the state-court decision was not an unreasonable application of clearly established federal law. In doing so, however, I emphasize that today's opinion does not say that the state courts' interpretation of Cronic was correct, or that we would have accepted that reading if the case had come to us on direct review rather than by way of 28 U.S.C. §2254. See ante, at 6-7; see also Williams, 529 U.S., at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law"). FOOTNOTESFootnote **Cronic also applies when "there [is] a breakdown in the adversarial process," 466 U.S., at 662, such that "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," id., at 659. We have made clear that "[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." Bell v. Cone, 535 U.S. 685, 696-697 (2002). It is undisputed that this standard has not been met here. FOOTNOTESFootnote **In his opinion for a unanimous panel, Judge Evans explained at length why respondent had not had the assistance of counsel at a critical stage of the proceeding--the plea hearing--which resulted in a sentence of imprisonment for 25 years. He wrote, in part: The Sixth Amendment's right-to-counsel guarantee recognizes 'the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty.' Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938). 'Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.' Cronic, 466 U.S. at 654 (citation omitted). Thus, a defendant requires an attorney's 'guiding hand' through every stage of the proceedings against him. Powell v. Alabama, 287 U.S. 45, 53 (1932); Cronic, 466 U.S. at 658. It is well-settled that a court proceeding in which a defendant enters a plea (a guilty plea or, as here, a plea of no contest) is a 'critical stage' where an attorney's presence is crucial because 'defenses may be ... irretrievably lost, if not then and there asserted.' Hamilton v. Alabama, 368 U.S. 52, 54 (1961). See also White v. Maryland, 373 U.S. 59, 60 (1963); United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1014 (7th Cir. 1988). Indeed, with plea bargaining the norm and trial the exception, for most criminal defendants a change of plea hearing is the critical stage of their prosecution. In deciding whether to dispense with the two-part Strickland inquiry, a court must evaluate whether the 'surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel,' Cronic, 466 U.S. at 666, and thus 'justify a presumption that [the] conviction was insufficiently reliable to satisfy the Constitution,' id. at 662. In this case, although the transcript shows that the state trial judge did his best to conduct the plea colloquy with care, the arrangements made it impossible for Van Patten to have the 'assistance of counsel' in anything but the most perfunctory sense. Van Patten stood alone before judge and prosecutor. Unlike the usual defendant in a criminal case, he could not turn to his lawyer for private legal advice, to clear up misunderstandings, to seek reassurance, or to discuss any last-minute misgivings. Listening over an audio connection, counsel could not detect and respond to cues from his client's demeanor that might have indicated he did not understand certain aspects of the proceeding, or that he was changing his mind. If Van Patten wished to converse with his attorney, anyone else in the courtroom could effectively eavesdrop. (We assume the district attorney would balk if he were expected to conduct last-minute consultations with his staff via speakerphone in open court, 'on the record,' with the defendant taking in every word.) No advance arrangements had been made for a private line in a private place, and even if one could 'perhaps' have been provided, it would have required a special request by Van Patten and, apparently, a break in the proceedings. In short, this was not an auspicious setting for someone about to waive very valuable constitutional rights." Van Patten v. Deppisch, 434 F.3d 1038, 1042-1043 (CA7 2006).

conservative

person

criminal_procedure

1978-150-01

United States Supreme Court JACKSON v. VIRGINIA(1979) No. 78-5283 Argued: March 21, 1979Decided: June 28, 1979 Petitioner was convicted of first-degree murder after a bench trial in a Virginia court, and his motion and petition in the state courts to set aside the conviction on the ground that there was insufficient evidence of premeditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus proceeding in Federal District Court, which, applying the "no evidence" criterion of Thompson v. Louisville, 362 U.S. 199 , found the record devoid of evidence of premeditation and granted the writ. Applying the same criterion, the Court of Appeals reversed, holding that there was some evidence that petitioner had intended to kill the victim. Held: 1. A federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358 . Pp. 313-324. (a) In re Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Pp. 313-316. (b) After In re Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt. Pp. 316-320. (c) In a challenge to a state conviction brought under 28 U.S.C. 2254, which requires a federal court to entertain a state prisoner's claim that he is being held in "custody in violation of the Constitution [443 U.S. 307, 308] or laws or treaties of the United States," the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Pp. 320-324. 2. A review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. Pp. 324-326. 580 F.2d 1048, affirmed. STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 326. POWELL, J., took no part in the consideration or decision of the case. Carolyn J. Colville, by appointment of the Court, 439 U.S. 1064 , argued the cause pro hac vice and filed briefs for petitioner. Marshall Coleman, Attorney General of Virginia, argued the cause for respondents. With him on the brief was Linwood T. Wells, Assistant Attorney General. * [Footnote * Briefs of amici curiae urging affirmance were filed by George Deukmejian, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Eddie T. Keller, Willard F. Jones, and Jane K. Fischer, Deputy Attorneys General, for the State of California; by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden, Senior Assistant Attorney General, and Susan v. Boleyn, Assistant Attorney General, for the State of Georgia; by Frank J. Kelley, Attorney General, Robert A. Derengoski. Solicitor General, and Thomas L. Casey, Assistant Attorney General, for the State of Michigan; and for their respective States by Theodore L. Sendak, Attorney General, David A. Arthur, Deputy Attorney General, and Donald P. Bogard, of Indiana, Robert B. Hansen, Attorney General of Utah, Edward G. Biester, Jr., Attorney General of Pennsylvania, Paul L. Douglas, Attorney General of Nebraska, and Chauncey H. Browning, Attorney General of West Virginia. [443 U.S. 307, 309] MR. JUSTICE STEWART delivered the opinion of the Court. The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358 . The question in this case is what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence. I The petitioner was convicted after a bench trial in the Circuit Court of Chesterfield County, Va., of the first-degree murder of a woman named Mary Houston Cole. 1 Under Virginia law, murder is defined as "the unlawful killing of another with malice aforethought." Stapleton v. Commonwealth, 123 Va. 825, 96 S. E. 801. Premeditation, or specific intent to kill, distinguishes murder in the first from murder in the second degree; proof of this element is essential to conviction of the former offense, and the burden of proving it clearly rests with the prosecution. Shiflett v. Commonwealth, 143 Va. 609, 130 S. E. 777; Jefferson v. Commonwealth, 214 Va. 432, 201 S. E. 2d 749. That the petitioner had shot and killed Mrs. Cole was not in dispute at the trial. The State's evidence established that [443 U.S. 307, 310] she had been a member of the staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct charge, and that when he was released she had arranged for him to live in the home of her son and daughter-in-law. Testimony by her relatives indicated that on the day of the killing the petitioner had been drinking and had spent a great deal of time shooting at targets with his revolver. Late in the afternoon, according to their testimony, he had unsuccessfully attempted to talk the victim into driving him to North Carolina. She did drive the petitioner to a local diner. There the two were observed by several police officers, who testified that both the petitioner and the victim had been drinking. The two were observed by a deputy sheriff as they were preparing to leave the diner in her car. The petitioner was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The sheriff testified that he had offered to keep the revolver until the petitioner sobered up, but that the latter had indicated that this would be unnecessary since he and the victim were about to engage in sexual activity. Her body was found in a secluded church parking lot a day and a half later, naked from the waist down, her slacks beneath her body. Uncontradicted medical and expert evidence established that she had been shot twice at close range with the petitioner's gun. She appeared not to have been sexually molested. Six cartridge cases identified as having been fired from the petitioner's gun were found near the body. After shooting Mrs. Cole, the petitioner drove her car to North Carolina, where, after a short trip to Florida, he was arrested several days later. In a postarrest statement, introduced in evidence by the prosecution, the petitioner admitted that he had shot the victim. He contended, however, that the shooting had been accidental. When asked to describe his condition at the time of the shooting, he indicated that he had not been drunk, but had been "pretty high." His [443 U.S. 307, 311] story was that the victim had attacked him with a knife when he resisted her sexual advances. He said that he had defended himself by firing a number of warning shots into the ground, and had then reloaded his revolver. The victim, he said, then attempted to take the gun from him, and the gun "went off" in the ensuing struggle. He said that he fled without seeking help for the victim because he was afraid. At the trial, his position was that he had acted in self-defense. Alternatively, he claimed that in any event the State's own evidence showed that he had been too intoxicated to form the specific intent necessary under Virginia law to sustain a conviction of murder in the first degree. 2 The trial judge, declaring himself convinced beyond a reasonable doubt that the petitioner had committed first-degree murder, found him guilty of that offense. 3 The petitioner's motion to set aside the judgment as contrary to the evidence was denied, and he was sentenced to serve a term of 30 years in the Virginia state penitentiary. A petition for writ of error to the Virginia Supreme Court on the ground that the evidence was insufficient to support the conviction was denied. 4 [443 U.S. 307, 312] The petitioner then commenced this habeas corpus proceeding in the United States District Court for the Eastern District of Virginia, raising the same basic claim. 5 Applying the "no evidence" criterion of Thompson v. Louisville, 362 U.S. 199 , the District Court found the record devoid of evidence of premeditation and granted the writ. The Court of Appeals for the Fourth Circuit reversed the judgment. 6 The court noted that a dissent from the denial of certiorari in a case in this Court had exposed the question whether the constitutional rule of In re Winship, 397 U.S. 358 , might compel a new criterion by which the validity of a state criminal conviction must be tested in a federal habeas corpus proceeding. See Freeman v. Zahradnick, 429 U.S. 1111 (dissent from denial of certiorari). But the appellate court held that in the absence of further guidance from this Court it would apply the same "no evidence" criterion of Thompson v. Louisville that the District Court had adopted. The court was of the view that some evidence that the petitioner had intended to kill the victim could be found in the facts that the petitioner had reloaded his gun after firing warning shots, that he had had time to do so, and that the victim was then shot not once but twice. The court also concluded that the state trial judge could have found that the petitioner was not so intoxicated as to be incapable of premeditation. We granted certiorari to consider the petitioner's claim that under In re Winship, supra, a federal habeas corpus court must [443 U.S. 307, 313] consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. 439 U.S. 1001 . II Our inquiry in this case in narrow. The petitioner has not seriously questioned any aspect of Virginia law governing the allocation of the burden of production or persuasion in a murder trial. See Mullaney v. Wilbur, 421 U.S. 684 ; Patterson v. New York, 432 U.S. 197 . As the record demonstrates, the judge sitting as factfinder in the petitioner's trial was aware that the State bore the burden of establishing the element of premeditation, and stated that he was applying the reasonable-doubt standard in his appraisal of the State's evidence. The petitioner, moreover, does not contest the conclusion of the Court of Appeals that under the "no evidence" rule of Thompson v. Louisville, supra, his conviction of first-degree murder is sustainable. And he has not attacked the sufficiency of the evidence to support a conviction of second-degree murder. His sole constitutional claim, based squarely upon Winship, is that the District Court and the Court of Appeals were in error in not recognizing that the question to be decided in this case is whether any rational factfinder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated. The question thus raised goes to the basic nature of the constitutional right recognized in the Winship opinion. III A This is the first of our cases to expressly consider the question whether the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion [443 U.S. 307, 314] that every element of the crime has been established beyond a reasonable doubt. Upon examination of the fundamental differences between the constitutional underpinnings of Thompson v. Louisville, supra, and of In re Winship, supra, the answer to that question, we think, is clear. It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U.S. 196, 201 ; Presnell v. Georgia, 439 U.S. 14 . These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E. g., Hovey v. Elliott, 167 U.S. 409, 416 -420. Cf. Boddie v. Connecticut, 401 U.S. 371, 377 -379. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire, 414 U.S. 478 ; Adderley v. Florida, 385 U.S. 39 ; Gregory v. Chicago, 394 U.S. 111 ; Douglas v. Buder, 412 U.S. 430 . The "no evidence" doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty. The Court in Thompson explicitly stated that the due process right at issue did not concern a question of evidentiary "sufficiency." 362 U.S., at 199 . The right established in In re Winship, however, clearly stands on a different footing. Winship involved an adjudication of juvenile delinquency made by a judge under a state statute providing that the prosecution must prove the conduct charged as delinquent - which in Winship would have been a criminal offense if engaged in by an adult - by a preponderance of the evidence. [443 U.S. 307, 315] Applying that standard, the judge was satisfied that the juvenile was "guilty," but he noted that the result might well have been different under a standard of proof beyond a reasonable doubt. In short, the record in Winship was not totally devoid of evidence of guilt. The constitutional problem addressed in Winship was thus distinct from the stark problem of arbitrariness presented in Thompson v. Louisville. In Winship, the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S., at 364 . In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Id., at 358-362. See Davis v. United States, 160 U.S. 469 ; Brinegar v. United States, 338 U.S. 160, 174 ; Leland v. Oregon, 343 U.S. 790 ; 9 J. Wigmore, Evidence 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v. INS, 385 U.S. 276, 285 . The standard of proof beyond a reasonable doubt, said the Court, "plays a vital role in the American scheme of criminal procedure," because it operates to give "concrete substance" to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U.S., at 363 . At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Id., at 372 (Harlan, J., concurring). The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on "proof beyond a reasonable doubt . . . ." In subsequent cases discussing the reasonable-doubt standard, we have never departed from this definition of the rule or from [443 U.S. 307, 316] the Winship understanding of the central purposes it serves. See, e. g., Ivan V. v. City of New York, 407 U.S. 203, 204 ; Lego v. Twomey, 404 U.S. 477, 486 -487; Mullaney v. Wilbur, 421 U.S. 684 ; Patterson v. New York, 432 U.S. 197 ; Cool v. United States, 409 U.S. 100, 104 . In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. B Although several of our cases have intimated that the factfinder's application of the reasonable-doubt standard to the evidence may present a federal question when a state conviction is challenged, Lego v. Twomey, supra, at 487; Johnson v. Louisiana, 406 U.S. 356, 360 , the Federal Courts of Appeals have generally assumed that so long as the reasonable-doubt instruction has been given at trial, the no-evidence doctrine of Thompson v. Louisville remains the appropriate guide for a federal habeas corpus court to apply in assessing a state prisoner's challenge to his conviction as founded upon insufficient evidence. See, e. g., Cunha v. Brewer, 511 F.2d 894 (CA8). 7 We cannot agree. The Winship doctrine requires more than simply a trial [443 U.S. 307, 317] ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. 8 A "reasonable doubt," at a minimum, is one based upon "reason." 9 Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States, 315 U.S. 60, 80 ; Bronston v. United States, 409 U.S. 352 . See also, e. g., Curley v. United States, 81 U.S. App. D.C. 389, 392-393, 160 F.2d 229, 232-233. 10 Under Winship, which established [443 U.S. 307, 318] proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand. A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. For example, on direct review of a state-court conviction, where the claim is made that an involuntary confession was used against the defendant, this Court reviews the facts to determine whether the confession was wrongly admitted in evidence. Blackburn v. Alabama, 361 U.S. 199, 205 -210. Cf. Drope v. Missouri, 420 U.S. 162, 174 -175, and n. 10. The same duty obtains in federal habeas corpus proceedings. See Townsend v. Sain, 372 U.S. 293, 318 ; Brown v. Allen, 344 U.S. 443, 506 -507 (opinion of Frankfurter, J.). After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. 11 But this inquiry does not require a court to "ask [443 U.S. 307, 319] itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S., at 282 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S., at 362 . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. 12 The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law. 13 [443 U.S. 307, 320] That the Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. "[A] mere modicum of evidence may satisfy a `no evidence' standard . . . ." Jacobellis v. Ohio, 378 U.S. 184, 202 (Warren, C. J., dissenting). Any evidence that is relevant - that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed. Rule Evid. 401 - could be deemed a "mere modicum." But it could not seriously be argued that such a "modicum" of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored. 14 C Under 28 U.S.C. 2254, a federal court must entertain a claim by a state prisoner that he or she is being held in "custody in violation of the Constitution or laws or treaties of the [443 U.S. 307, 321] United States." Under the Winship decision, it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, assuming that state remedies have been exhausted, see 28 U.S.C. 2254 (b), and that no independent and adequate state ground stands as a bar, see Estelle v. Williams, 425 U.S. 501 ; Francis v. Henderson, 425 U.S. 536 ; Wainwright v. Sykes, 433 U.S. 72 ; Fay v. Noia, 372 U.S. 391, 438 , it follows that such a claim is cognizable in a federal habeas corpus proceeding. The respondents have argued, nonetheless, that a challenge to the constitutional sufficiency of the evidence should not be entertained by a federal district court under 28 U.S.C. 2254. In addition to the argument that a Winship standard invites replication of state criminal trials in the guise of 2254 proceedings - an argument that simply fails to recognize that courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact - the respondents have urged that any departure from the Thompson test in federal habeas corpus proceedings will expand the number of meritless claims brought to the federal courts, will duplicate the work of the state appellate courts, will disserve the societal interest in the finality of state criminal proceedings, and will increase friction between the federal and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be deemed to fall within the limit on federal habeas corpus jurisdiction identified in Stone v. Powell, 428 U.S. 465 , with respect to Fourth Amendment claims. We disagree. First, the burden that is likely to follow from acceptance of the Winship standard has, we think, been exaggerated. Federal-court challenges to the evidentiary support for state convictions have since Thompson been dealt with under 2254. E. g., Freeman v. Stone, 444 F.2d 113 (CA9); Grieco v. [443 U.S. 307, 322] Meachum, 533 F.2d 713 (CA1); Williams v. Peyton, 414 F.2d 776 (CA4). A more stringent standard will expand the contours of this type of claim, but will not create an entirely new class of cases cognizable on federal habeas corpus. Furthermore, most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts, and, if the state courts have fully considered the issue of sufficiency, the task of a federal habeas court should not be difficult. Cf. Brown v. Allen, 344 U.S., at 463 . 15 And this type of claim can almost always be judged on the written record without need for an evidentiary hearing in the federal court. Second, the problems of finality and federal-state comity arise whenever a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional violation. A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim. Although state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from Winship, the same could also be said of the vast majority of other federal constitutional rights that may be implicated in a state criminal trial. It is the occasional abuse that the federal writ of habeas corpus stands ready to correct. Brown v. Allen, supra, at 498-501 (opinion of Frankfurter, J.). [443 U.S. 307, 323] The respondents have argued nonetheless that whenever a person convicted in a state court has been given a "full and fair hearing" in the state system - meaning in this instance state appellate review of the sufficiency of the evidence - further federal inquiry - apart from the possibility of discretionary review by this Court - should be foreclosed. This argument would prove far too much. A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. 2254 (b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur - reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right - is not one that can be so lightly abjured. The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court's decision in Stone v. Powell, supra. The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E. g., Mullaney v. Wilbur, 421 U.S., at 697 -698 (requirement of proof beyond a reasonable doubt is not "limit[ed] to those facts which, if not proved, would wholly exonerate" the accused). Under our system of criminal justice even a thief [443 U.S. 307, 324] is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar. We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. 2254 - if the settled procedural prerequisites for such a claim have otherwise been satisfied - the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 16 IV Turning finally to the specific facts of this case, we reject the petitioner's claim that under the constitutional standard dictated by Winship his conviction of first-degree murder cannot stand. A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. There was no question at the trial that the petitioner had fatally shot Mary Cole. The crucial factual dispute went to the sufficiency of the evidence to support a finding that he had specifically intended to kill her. This question, as the Court of Appeals recognized, must be gauged in the light of applicable Virginia law defining the element of premeditation. Under that law it is well settled that premeditation need not exist for any particular length of time, and that an intent to kill may be formed at the moment of the commission of the unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S. E. 447. From the circumstantial evidence in the record, it is [443 U.S. 307, 325] clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner did possess the necessary intent at or before the time of the killing. The prosecution's uncontradicted evidence established that the petitioner shot the victim not once but twice. The petitioner himself admitted that the fatal shooting had occurred only after he had first fired several shots into the ground and then reloaded his gun. The evidence was clear that the two shots that killed the victim were fired at close, and thus predictably fatal, range by a person who was experienced in the use of the murder weapon. Immediately after the shooting, the petitioner drove without mishap from Virginia to North Carolina, a fact quite at odds with his story of extreme intoxication. Shortly before the fatal episode, he had publicly expressed an intention to have sexual relations with the victim. Her body was found partially unclothed. From these uncontradicted circumstances, a rational factfinder readily could have inferred beyond a reasonable doubt that the petitioner, notwithstanding evidence that he had been drinking on the day of the killing, did have the capacity to form and had in fact formed an intent to kill the victim. The petitioner's calculated behavior both before and after the killing demonstrated that he was fully capable of committing premeditated murder. His claim of self-defense would have required the trial judge to draw a series of improbable inferences from the basic facts, prime among them the inference that he was wholly uninterested in sexual activity with the victim but that she was so interested as to have willingly removed part of her clothing and then attacked him with a knife when he resisted her advances, even though he was armed with a loaded revolver that he had just demonstrated he knew how to use. It is evident from the record that the trial judge found this story, including the petitioner's belated contention that he had been so intoxicated as to be incapable of premeditation, incredible. [443 U.S. 307, 326] Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140 . We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first degree under Virginia law. For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of this case. Footnotes [Footnote 1 The degrees of murder in Virginia are specified in Va. Code 18.2-32 (1975) as follows: "Murder other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery, burglary or abduction . . . is murder of the first degree, punishable as a Class 2 felony. "All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable as a Class 3 felony." Class 2 felonies carry a term of 20 years to life. 18.2-10 (b) (1975). The sentence for Class 3 felonies can range from 5 to 20 years, 18.2-10 (c). Murder itself takes its definition in Virginia from the common law. Stapleton v. Commonwealth, 123 Va. 825, 96 S. E. 801. [Footnote 2 Under Virginia law, voluntary intoxication - although not an affirmative defense to second-degree murder - is material to the element of premeditation and may be found to have negated it. Hatcher v. Commonwealth, 218 Va. 811, 241 S. E. 2d 756. [Footnote 3 When trial without a jury is had on a not guilty plea in Virginia, the court is to "have and exercise all the powers, privileges and duties given to juries . . . ." Va. Code 19.2-257 (1975). [Footnote 4 There is no appeal as of right from a criminal conviction in Virginia. Saunders v. Reynolds, 214 Va. 697, 204 S. E. 2d 421. Each petition for writ of error under Va. Code 19.2-317 (1975) is reviewed on the merits, however, and the effect of a denial is to affirm the judgment of conviction on the merits. Saunders v. Reynolds, supra. The petition for writ of error alleged that "the trial Court erred in finding the Petitioner guilty of first-degree murder in light of the evidence introduced on behalf of the Commonwealth, and on unwarranted inferences drawn from this evidence." The petitioner contended that an affirmance would violate the Due Process Clause of the Fourteenth Amendment. [443 U.S. 307, 312] In its order denying Jackson's petition, the Virginia Supreme Court stated it was "of [the] opinion that there is no reversible error in the judgment complained of . . . ." Virginia law requires sufficiency claims to be raised on direct appeal; such a claim may not be raised in a state habeas corpus proceeding. Pettus v. Peyton, 207 Va. 906, 153 S. E. 2d 278. [Footnote 5 The District Court correctly found that the petitioner had exhausted his state remedies on this issue. See n. 4, supra. [Footnote 6 The opinions of the District Court and the Court of Appeals are not reported. The Court of Appeals' judgment order is reported at 580 F.2d 1048. [Footnote 7 The Court of Appeals in the present case, of course, recognized that Winship may have changed the constitutional standard in federal habeas corpus. And the Court of Appeals for the Sixth Circuit recently recognized the possible impact of Winship on federal habeas corpus in a case in which it held that "a rational trier of fact could have found the defendant . . . guilty beyond a reasonable doubt." Spruytte v. Koehler, affirmance order, 590 F.2d 335. An even more recent case in that court provoked a lively debate among three of its members regarding the effect of Winship upon federal habeas corpus. The writ was granted in that case, even though the trial record concededly contained "some evidence" of the applicant's guilt. See Speigner v. Jago, 603 F.2d 1208. [Footnote 8 The trier of fact in this case was a judge and not a jury. But this is of no constitutional significance. The record makes clear that the judge deemed himself "properly instructed." [Footnote 9 A "reasonable doubt" has often been described as one "based on reason which arises from the evidence or lack of evidence." Johnson v. Louisiana, 406 U.S. 356, 360 (citing cases). For a discussion of variations in the definition used in jury instructions, see Holland v. United States, 348 U.S. 121, 140 (rejecting contention that circumstantial evidence must exclude every hypothesis but that of guilt). [Footnote 10 This, of course, does not mean that convictions are frequently reversed upon this ground. The practice in the federal courts of entertaining properly preserved challenges to evidentiary sufficiency, see Fed. Rule Crim. Proc. 29, serves only to highlight the traditional understanding in our system that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion. To be sure, the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of "not guilty." This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming. The power of the factfinder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty. Carpenters & Joiners v. United States, 330 U.S. 395, 408 . Cf. Capital Traction Co. v. Hof, 174 U.S. 1, 13 -14. Any such premise is wholly belied by the settled practice of testing evidentiary sufficiency through a motion for judgment of acquittal and a postverdict appeal from the denial [443 U.S. 307, 318] of such a motion. See generally 4 L. Orfield, Criminal Procedure Under the Federal Rules 29:1-29:29 (1967 and Supp. 1978). [Footnote 11 Until 1972, the Court of Appeals for the Second Circuit took the position advanced today by the opinion concurring in the judgment that the beyond-a-reasonable-doubt standard is merely descriptive of the state of mind required of the factfinder in a criminal case and not of the actual quantum and quality of proof necessary to support a criminal conviction. Thus, that court held that in a jury trial the judge need not distinguish between criminal and civil cases for the purpose of ruling on a motion for judgment of acquittal. United States v. Feinberg, 140 F.2d 592, 594. In United States v. Taylor, 464 F.2d 240 (CA2), Feinberg was overruled, partly on the strength of Winship. The Taylor court adopted the directed-verdict criterion articulated in Curley v. United States, 81 U.S. App. D.C. 389, 392-393, 160 F.2d 229, 232-233 (If "reasonable" jurors "must necessarily have . . . a reasonable doubt" as to guilt, the judge "must require acquittal, because no other result is permissible within the [443 U.S. 307, 319] fixed bounds of jury consideration"). This is now the prevailing criterion for judging motions for acquittal in federal criminal trials. See generally 2 C. Wright, Federal Practice and Procedure 467 (1969 and Supp. 1978). [Footnote 12 Contrary to the suggestion in the opinion concurring in the judgment, the criterion announced today as the constitutional minimum required to enforce the due process right established in Winship is not novel. See, e. g., United States v. Amato, 495 F.2d 545, 549 (CA5) ("whether, taking the view [of the evidence] most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt") (emphasis added); United States v. Jorgenson, 451 F.2d 516, 521 (CA10) (whether, "considering the evidence in the light most favorable to the government, there is substantial evidence from which a jury might reasonably find that an accused is guilty beyond a reasonable doubt") (emphasis added). Glasser v. United States, 315 U.S. 60, 80 , has universally been understood as a case applying this criterion. See, e. g., Harding v. United States, 337 F.2d 254, 256 (CA8). See generally 4 Orfield, supra n. 10, 29.28. [Footnote 13 The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict [443 U.S. 307, 320] was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder - if known. See generally 3 F. Wharton, Criminal Procedure 520 (12th ed. 1975 and Supp. 1978). [Footnote 14 Application of the Thompson standard to assess the validity of a criminal conviction after Winship could lead to absurdly unjust results. Our cases have indicated that failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error. See Cool v. United States, 409 U.S. 100 . Cf. Taylor v. Kentucky, 436 U.S. 478 . Thus, a defendant whose guilt was actually proved by overwhelming evidence would be denied due process if the jury was instructed that he could be found guilty on a mere preponderance of the evidence. Yet a defendant against whom there was but one slender bit of evidence would not be denied due process so long as the jury has been properly instructed on the prosecution's burden of proof beyond a reasonable doubt. Such results would be wholly faithless to the constitutional rationale of Winship. [Footnote 15 The Virginia Supreme Court's order denying Jackson's petition for writ of error does not make clear what criterion was applied to the petitioner's claim that the evidence in support of his first-degree murder conviction was insufficient. See n. 4, supra. At oral argument, counsel for the petitioner contended that the Virginia sufficiency standard is not keyed to Winship. Counsel for the State disagreed. Under these circumstances, we decline to speculate as to the criterion that the state court applied. The fact that a state appellate court invoked the proper standard, however, although entitled to great weight, does not totally bar a properly presented claim of this type under 2254. [Footnote 16 The respondents have suggested that this constitutional standard will invite intrusions upon the power of the States to define criminal offenses. Quite to the contrary, the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Whether the State could constitutionally make the conduct at issue criminal at all is, of course, a distinct question. See Papachristou v. Jacksonville, 405 U.S. 156 ; Robinson v. California, 370 U.S. 660 . MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment. The Constitution prohibits the criminal conviction of any person except upon proof sufficient to convince the trier of fact of guilt beyond a reasonable doubt. Cf. ante, at 309. This rule has prevailed in our courts "at least from our early years as a Nation." In re Winship, 397 U.S. 358, 361 . Today the Court creates a new rule of law - one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person - including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial judge, and one or more levels of state appellate judges - except upon proof sufficient to convince a federal [443 U.S. 307, 327] judge that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319. The adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. Despite its chimerical appeal as a new counterpart to the venerable principle recognized in Winship, I am persuaded that its precipitous adoption will adversely affect the quality of justice administered by federal judges. For that reason I shall analyze this new brainchild with some care. I shall begin by explaining why neither the record in this case, nor general experience with challenges to the sufficiency of the evidence supporting criminal convictions, supports, much less compels, the conclusion that there is any need for this new constitutional precept. I shall next show that it is not logically compelled by either the holding or the analysis in In re Winship, supra. Finally, I shall try to demonstrate why the Court's new rule - if it is not just a meaningless shibboleth - threatens serious harm to the quality of our judicial system. I It is, of course, part of this Court's tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic - indeed, for any - constitutional law-making efforts unless (1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law. See Ashwander v. TVA, 297 U.S. 288, 345 -348 (Brandeis, J., concurring). [443 U.S. 307, 328] In this case, the Court's analysis fails on both counts. It has accordingly formulated a new constitutional principle under the most dangerous possible circumstances - i. e., where the exercise of judicial authority is neither necessitated nor capable of being limited by "the precise facts to which [the rule is originally] to be applied," Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39 , nor even by some broader set of identifiable experiences with the evil supposedly involved. Most significantly, the Court has announced its new constitutional edict in a case in which it has absolutely no bearing on the outcome. The only factual issue at stake is whether petitioner intended to kill his victim. If the evidence is viewed "in the light most favorable to the prosecution," ante, at 319 - and, indeed, we may view it through the eyes of the actual factfinder, whose observations about the evidence are recorded in the trial transcript - there can be only one answer to that question no matter what standard of appellate review is applied. In Part IV of its opinion, the Court accepts this conclusion. There is, therefore, no need to fashion a broad new rule of constitutional law to dispose of this squalid but rather routine murder case. Under any view, the evidence is sufficient. The Court's new rule is adopted simply to forestall some hypothetical evil that has not been demonstrated, and in my view is not fairly demonstrable. Although the Judiciary has received its share of criticism - principally because of the delays and costs associated with litigation - I am aware of no general dissatisfaction with the accuracy of the factfinding process or the adequacy of the rules applied by state appellate courts when reviewing claims of insufficiency. What little evidence the Court marshals in favor of a contrary conclusion is unconvincing. See ante, at 317-318, n. 10. The Court is simply incorrect in implying that there are a significant number of occasions when federal convictions are [443 U.S. 307, 329] overturned on appeal because no rational trier of fact could have found guilt beyond a reasonable doubt. The two opinions of this Court cited ante, at 317, stand for no such proposition. In neither was a conviction reversed for insufficiency. See Glasser v. United States, 315 U.S. 60 ; Bronston v. United States, 409 U.S. 352 . Moreover, a study of the 127 federal criminal convictions that were reviewed by the various Courts of Appeals and reported in the most recent hardbound volume of the Federal Reporter, Second Series, Volume 589, reveals that only 3 were overturned on sufficiency grounds. And of those, one was overturned under a "no evidence" standard, while the other two, in which a total of only 3 out of 36 counts were actually reversed, arguably involved legal issues masquerading as sufficiency questions. 1 It is difficult to believe that the federal courts will turn up more sufficiency problems than this on habeas review when, instead of acting as the first level of [443 U.S. 307, 330] review, as in the cases studied, they will be acting as the second, third, or even fourth level of appellate review. In short, there is simply no reason to tinker with an elaborate mechanism that is now functioning well. II There is nothing in the facts of this case or, so far as the Court has demonstrated, in those of cases like it to warrant today's excursion into constitutional rulemaking. The Court instead portrays its rule as the logical corollary of the principle recognized in Winship regarding the subjective state of mind that persons charged with the responsibility of evaluating the credibility of evidence must possess before they find the defendant guilty in a criminal case. But an examination of Winship reveals that it has nothing to do with appellate, much less habeas corpus, review standards; that the reasoning used in that case to reach its conclusion with respect to the trier of fact does not support, and indeed counsels against, the Court's conclusion with respect to federal habeas judges; and that there is no necessary connection between the rule recognized in Winship and the rule invented by the Court today. In distinct contrast to the circumstances of this case, the facts of Winship presented "a case where the choice of the standard of proof has made a difference: the [trial] judge below forthrightly acknowledged that he believed by a preponderance of the evidence [in], but was not convinced beyond a reasonable doubt" of, the juvenile's guilt. 397 U.S., at 369 (Harlan, J., concurring). Because the trier of fact entertained such a doubt, this Court held that the juvenile was constitutionally entitled to the same verdict that an adult defendant in a criminal case would receive. In so holding, the Court merely extended to juveniles a protection that had traditionally been available to defendants in criminal trials in this Nation. Id., at 361. But nothing in the Winship opinion suggests that it also [443 U.S. 307, 331] bore on appellate or habeas corpus procedures. Although it repeatedly emphasized the function of the reasonable-doubt standard as describing the requisite "subjective state of certitude" of the "factfinder," 2 it never mentioned the question of how appellate judges are to know whether the trier of fact really was convinced beyond a reasonable doubt, or, indeed, whether the factfinder was a "rational" person or group of persons. Moreover, the mode of analysis employed in Winship finds no counterpart in the Court's opinion in this case. For example, in Winship, the Court pointed out the breadth of both the historical and the current acceptance of the reasonable-doubt trial standard. 3 In this case, by contrast, the Court [443 U.S. 307, 332] candidly recognizes that the Federal Courts of Appeals have "generally" rejected the habeas standard that it adopts today. Ante, at 316. 4 The Winship court relied on nine prior opinions of this Court that bore directly on the issue presented. 397 U.S., at 362 . Here, the Court purportedly relies on two prior decisions, but as is pointed out, supra, at 329, neither of these cases itself applied a "reasonable doubt" appellate standard to overturn a conviction, neither purported to be interpreting the Constitution, and neither expressed any view whatsoever on the appropriate standard in collateral proceedings such as are involved in this case. 5 As the Court itself notes, we have instead repeatedly endorsed the "no evidence" test, and have continued to do so after Winship was decided. Vachon v. [443 U.S. 307, 333] New Hampshire, 414 U.S. 478 ; Douglas v. Buder, 412 U.S. 430 ; Gregory v. Chicago, 394 U.S. 111 ; Adderley v. Florida, 385 U.S. 39 ; Thompson v. Louisville, 362 U.S. 199 . See also Clyatt v. United States, 197 U.S. 207, 222 . The primary reasoning of the Court in Winship is also inapplicable here. The Court noted in that case that the reasonable-doubt standard has the desirable effect of significantly reducing the risk of an inaccurate factfinding and thus of erroneous convictions, as well as of instilling confidence in the criminal justice system. 397 U.S., at 363 -364. See also id., at 370-372 (Harlan, J., concurring). In this case, however, it would be impossible (and the Court does not even try) to demonstrate that there is an appreciable risk that a factfinding made by a jury beyond a reasonable doubt, and twice reviewed by a trial judge in ruling on directed verdict and post-trial acquittal motions and by one or more levels of appellate courts on direct appeal, as well as by two federal habeas courts under the Thompson "no evidence" rule, is likely to be erroneous. 6 Indeed, the very premise of Winship is that properly selected judges and properly instructed juries act rationally, that the former will tell the truth when they declare that they are convinced beyond a reasonable doubt and the latter will conscientiously obey and understand the reasonable-doubt instructions they receive before retiring to reach a verdict, and therefore that either factfinder will itself provide the necessary bulwark against erroneous factual determinations. To presume otherwise is to make light of Winship. 7 [443 U.S. 307, 334] Having failed to identify the evil against which the rule is directed, and having failed to demonstrate how it follows from the analysis typically used in due process cases of this character, the Court places all of its reliance on a dry, and in my view incorrect, syllogism: If Winship requires the factfinder to apply a reasonable-doubt standard, then logic requires a reviewing judge to apply a like standard But, taken to its ultimate conclusion, this "logic" would require the reviewing court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S. 276, 282 (emphasis added). The Court, however, rejects this standard, as well as others that might be considered consistent with Winship. For example, it does not require the reviewing court to view just the evidence most favorable to the prosecution and then to decide whether that evidence convinced it beyond a reasonable doubt, nor whether, based on the entire record, rational triers of fact could be convinced of guilt beyond a reasonable doubt. Instead, and without explanation, it chooses a still narrower standard that merely asks whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319. 8 It seems to me that if "logic" allows [443 U.S. 307, 335] this choice after Winship it should also allow the presumption that the Court has rejected - that trial judges and juries will act rationally and honestly in applying the reasonable-doubt standard, at least so long as the trial is free of procedural error and the record contains evidence tending to prove each of the elements of the offense. Time may prove that the rule the Court has adopted today is the wisest compromise between one extreme that maximizes the protection against the risk that innocent persons will be erroneously convicted and the other extreme that places the greatest faith in the ability of fair procedures to produce just verdicts. But the Court's opinion should not obscure the fact that its new rule is not logically compelled by the analysis or the holding in Winship or in any other precedent, or the fact that the rule reflects a new policy choice rather than the application of a pre-existing rule of law. III The Court cautions against exaggerating the significance of its new rule. Ante, at 321. It is true that in practice there may be little or no difference between a record that does not contain at least some evidence tending to prove every element of an offense and a record containing so little evidence that no rational factfinder could be persuaded of guilt beyond a reasonable doubt. Moreover, I think the Court is quite correct when it acknowledges that "most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts." Ante, at 322. But this only means that the new rule will seldom, if ever, provide a convicted state prisoner with any tangible benefits. It does not mean that the rule will have no impact on the administration of justice. On the contrary, I am persuaded that it will be seriously harmful both to the state and federal judiciaries. [443 U.S. 307, 336] The Court indicates that the new standard to be applied by federal judges in habeas corpus proceedings may be substantially the same as the standard most state reviewing courts are already applying. Ante, at 322. The federal district courts are therefore being directed simply to duplicate the reviewing function that is now being performed adequately by state appellate courts. In my view, this task may well be inconsistent with the prohibition - added by Congress to the federal habeas statute in order to forestall undue federal interference with state proceedings, see Wainwright v. Sykes, 433 U.S. 72, 80 - against overturning "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction." 28 U.S.C. 2254 (d). See LaVallee v. Delle Rose, 410 U.S. 690 . In any case, to assign a single federal district judge the responsibility of directly reviewing, and inevitably supervising, the most routine work of the highest courts of a State can only undermine the morale and the esteem of the state judiciary - particularly when the stated purpose of the additional layer of review is to determine whether the State's factfinder is "rational." 9 Such consequences are intangible but nonetheless significant. [443 U.S. 307, 337] The potential effect on federal judges is even more serious. Their burdens are already so heavy that they are delegating to staff assistants more and more work that we once expected judges to perform. 10 The new standard will invite an unknown number of state prisoners to make sufficiency challenges that they would not have made under the old rule. Moreover, because the "rational trier of fact" must certainly base its decisions on all of the evidence, the Court's broader standard may well require that the entire transcript of the state trial be read whenever the factfinders' rationality is challenged under the Court's rule. 11 Because this task will confront the courts of appeals as well as district courts, it will surely impose countless additional hours of unproductive labor on federal judges and their assistants. 12 The increasing volume [443 U.S. 307, 338] of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench. 13 The addition of a significant volume [443 U.S. 307, 339] of pointless labor can only impair the quality of justice administered by federal judges and thereby undermine "the respect and confidence of the community in applications of the . . . law." In re Winship, 397 U.S., at 364 . For these reasons, I am unable to join the Court's gratuitous directive to our colleagues on the federal bench. [Footnote 1 In United States v. Tarr, 589 F.2d 55 (CA1 1978), the court overturned one of two counts of which appellant was convicted because there was insufficient evidence to prove that he had the intent to aid and abet the unauthorized transfer of a machinegun in violation of 26 U.S.C. 5861 (e) and 18 U.S.C. 2. The court found "no evidence" that appellant had the requisite knowledge. 589 F.2d, at 60. In United States v. Whetzel, 191 U.S. App. D.C. 184, 589 F.2d 707 (1978), the court overturned 2 of the 35 counts of appellant's conviction because "the Government failed to offer proof that would permit a jury to reasonably infer that the merchandise [appellant] transported had a value of $5,000." Id., at 188, 589 F.2d, at 711. However, the basis for this determination was that the Government's valuation method, which the trial court allowed the jury to consider, was legally erroneous. Similarly, in United States v. Fearn, 589 F.2d 1316 (CA7 1978), the court overturned the conviction based on a federal nonconstitutional rule, which surely would not apply in habeas review of state convictions, "that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Id., at 1321. The court did not independently analyze whether the uncorroborated confession involved in that case could itself have allowed a rational trier of fact to find guilt beyond a reasonable doubt. [Footnote 2 In In re Winship, 397 U.S., at 364 , the Court stated: "As we said in Speiser v. Randall, [357 U.S. 513 ,] 525-526: `There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value - as a criminal defendant his liberty - this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.' To this end, the reasonable-doubt standard is indispensable, for it `impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967)." (Emphasis added.) Later on the same page, the Court added: "It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Ibid. (emphasis added.) See also id., at 370 (Harlan, J., concurring) ("[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication") (emphasis added). [Footnote 3 The Court, relying on treatises that analyzed the law in all 50 States as well as in the federal system, determined both that the reasonable-doubt [443 U.S. 307, 332] standard has prevailed at the trial level "at least from our early years as a Nation" and that it "is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." Id., at 361 (emphasis added). See also id., at 372 (Harlan, J., concurring) ("It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation") (emphasis added). [Footnote 4 The Court has undertaken no systematic analysis of the standards for reviewing the sufficiency of the evidence that prevail either in state habeas corpus and other collateral proceedings or in state appellate courts. What sources I have discovered suggest that "varied standards" are in use and that each is "subject to shifting and elastic definitions." Winningham, The Dilemma of the Directed Acquittal, 15 Vand. L. Rev. 699, 705-706 (1962). See ALI Code of Criminal Procedure, Commentary on 321, pp. 961-962 (1930); Rules of Criminal Procedure 481 (c), 522 (a) and commentary, 10 U. L. A. (1974). [Footnote 5 It hardly bears repeating that habeas corpus is not intended as a substitute for appeal, nor as a device for reviewing the merits of guilt determinations at criminal trials. See generally Stone v. Powell, 428 U.S. 465 . Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems. [Footnote 6 As I discuss earlier, see supra, at 329, the incidence of factual error at the trial level in federal courts appears to be exceedingly low, even when measured by the relatively strict appellate standard used by the Federal Courts of Appeals. Presumably the incidence of errors that survive that first level of review is even smaller. [Footnote 7 Indeed, the Court makes light of Winship by suggesting that, in the absence of its new habeas procedure, the result of that case is simply "a trial ritual." Ante, at 316-317. Far more likely in my view is that the [443 U.S. 307, 334] Court's difficult-to-apply but largely unnecessary rule will itself result in a "collateral-attack ritual" that will undermine the integrity of both the state and federal judiciaries. See infra, at 336-339. [Footnote 8 So far as I can determine, this standard first appeared in our jurisprudence in MR. JUSTICE STEWART's opinion dissenting from the Court's denial of certiorari in Freeman v. Zahradnick, 429 U.S. 1111, 1112 , 1113, 1114, 1116. At that time, it gave the impression of being somewhat narrower than - if only because it was stated quite differently from - the test used by the Courts of Appeals in reviewing federal convictions on direct appeal. See Curley v. United States, 81 U.S. App. D.C. 389, 392-393, 160 F.2d 229, 232-233 (1947). Although the Court twice repeats the Freeman test, see ante, at 313, 319, it now appears either to equate that standard with the - in my view - broader federal direct-review [443 U.S. 307, 335] standard, or to endorse both standards despite their differences. See ante, at 318, and nn. 11, 12. [Footnote 9 In the past, collateral review of state proceedings has been justified largely on the grounds (1) that federal judges have special expertise in the federal issues that regularly arise in habeas corpus proceeding, and (2) that they are less susceptible than state judges to political pressures against applying constitutional rules to overturn convictions. See, e. g., Bartels, Avoiding a Comity of Errors, 29 Stan. L. Rev. 27, 30 n. 9 (1976). Cf. Steffel v. Thompson, 415 U.S. 452, 464 ; Mitchum v. Foster, 407 U.S. 225, 242 . But neither of these justifications has any force in the present context. State judges are more familiar with the elements of state offenses than are federal judges and should be better able to evaluate sufficiency claims. Moreover, of all decisions overturning convictions, the least likely to be unpopular and thus to distort state decisionmaking processes are ones based on the inadequacy of the evidence. Indeed, once federal courts were divested of authority to second-guess state courts on Fourth Amendment issues, which are far more likely to generate politically [443 U.S. 307, 337] motivated state-court decisions, see Stone v. Powell, 428 U.S. 465 , a like result in this case would seem to be a fortiori. [Footnote 10 For example, the heavy federal workload has required the 13 regular and 7 senior judges on the Ninth Circuit to hire 30 staff attorneys and 33 law clerks to assist them in their labors. [Footnote 11 Additional burdens will also be imposed if the Court's rule is extended to federal habeas proceedings reviewing federal criminal trials, as well as to ones reviewing state civil commitment proceedings in which we have recently required at least the "clear and convincing" test to be applied as a matter of federal constitutional law. Addington v. Texas, 441 U.S. 418 . This Court's workload will also increase, of course, when its certiorari docket expands to accommodate the challenges generated by the Court's new rule. The effect will be even greater if the Court's opinion is read to require state appellate courts to apply the reasonable-doubt test on direct review and to require this Court to apply it when reviewing the decisions of those courts on certiorari. [Footnote 12 Professor Bator has persuasively explained how the law of diminishing returns inevitably makes it unwise to have duplicative review processes on the "merits" in criminal cases: "[I]f a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competences to determine legality. But, it may be asked, why should we seek a point at which such a judgment becomes final? Conceding that no process can assure ultimate truth, will not repetition of inquiry stand a better chance of approximating [443 U.S. 307, 338] it? In view of the awesomeness of the consequences of conviction, shouldn't we allow redetermination of the merits in an attempt to make sure that no error has occurred? "Surely the answer runs, in the first place, in terms of conservation of resources - and I mean not only simple economic resources, but all of the intellectual, moral, and political resources involved in the legal system. The presumption must be, it seems to me, that if a job can be well done once, it should not be done twice. If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it. The challenge really runs the other way: if a proceeding is held to determine the facts and law in a case, and the processes used in that proceeding are fitted to the task in a manner not inferior to those which would be used in a second proceeding, so that one cannot demonstrate that relitigation would not merely consist of repetition and second-guessing, why should not the first proceeding `count'? Why should we duplicate effort? After all, it is the very purpose of the first go-around to decide the case. Neither it nor any subsequent go-around can assure ultimate truth. If, then, the previous determination is to be ignored, we must have some reasoned institutional justification why this should be so. "Mere iteration of process can do other kinds of damage. I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else. Of course this does not mean that we should not have appeals. As we shall see, important functional and ethical purposes are served by allowing recourse to an appellate court in a unitary system, and to a federal supreme court in a federal system. The acute question is the effect it will have on a trial judge if we then allow still further recourse where these purposes may no longer be relevant. What seems so objectionable is second-guessing merely for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough we will find the `truth.'" Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963). See also F. James, Civil Procedure 518 (1965). [Footnote 13 The testimony of Griffin Bell at his confirmation hearings for Attorney General is particularly relevant. When asked by Senator Scott of [443 U.S. 307, 339] Virginia why he had earlier resigned from his seat on the Court of Appeals for the Fifth Circuit, Judge Bell responded: "I found it not to be a rewarding experience any longer. Whether it was because there was no more excitement after the 1960's or whether it was because the case load changed, but the work load was oppressive. I would not have minded the work load, but the character of the cases changed. It was almost like serving on a criminal court. I did not want to do that any longer." Hearings on the Prospective Nomination of Griffin B. Bell, of Georgia, to be Attorney General, before the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 27 (1977). [443 U.S. 307, 340]

conservative

public_entity

criminal_procedure

1973-020-01

United States Supreme Court NORTH DAKOTA PHARMACY BD. v. SNYDER'S STORES(1973) No. 72-1176 Argued: November 6, 1973Decided: December 5, 1973 The North Dakota Supreme Court, relying on Liggett Co. v. Baldridge, 278 U.S. 105 , held unconstitutional a state statute, under which respondent had been denied a pharmacy operating permit, requiring that an applicant for such a permit be "a registered pharmacist in good standing" or "a corporation or association, the majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy." The court remanded the case so that petitioner Board could conduct an administrative hearing "sans the constitutional issue," on respondent's alleged failure to meet certain structural and safety standards on which petitioner had also rested its permit denial. Held: 1. This Court does not lack jurisdiction to review the State Supreme Court's judgment, which is "final" within the meaning of 28 U.S.C. 1257, for it is not apparent how petitioner Board would be able to preserve the constitutional issue now ready for adjudication without defying the State Supreme Court. Pp. 159-164. 2. The North Dakota statutory requirements for permitting the operation of a pharmacy do not violate the Due Process Clause of the Fourteenth Amendment. In enacting the challenged legislation the State was well within its authority "to legislate against what [it] found to be injurious practices in [its] internal commercial and business affairs," Lincoln Union v. Northwestern Co., 335 U.S. 525, 536 , and this Court will not substitute its own judgment for what the State feels is reasonably necessary to protect the interests of the public. Liggett Co. v. Baldridge, supra, overruled. Pp. 164-167. 202 N. W. 2d 140, reversed and remanded. DOUGLAS, J., delivered the opinion for a unanimous Court. [414 U.S. 156, 157] A. William Lucas argued the cause and filed briefs for petitioner. Mart R. Vogel argued the cause and filed a brief for respondent. * [Footnote * Arthur B. Hanson, Ralph N. Albright, Jr., and Sidney Waller filed a brief for the American Pharmaceutical Assn. et al. as amici curiae urging reversal. Thomas D. Quinn, Jr., and Harold Rosenwald filed a brief for the National Association of Chain Drug Stores, Inc., as amicus curiae urging affirmance. MR. JUSTICE DOUGLAS delivered the opinion of the Court. North Dakota passed a statute 1 that requires that the applicant for a permit to operate a pharmacy be [414 U.S. 156, 158] "a registered pharmacist in good standing" or "a corporation or association, the majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy." Petitioner Board denied a permit to Snyder's Drug Stores, Inc., because it did not comply with the stock-ownership requirements of the statute, it appearing that all the common stock of Snyder's was owned by Red Owl Stores and it not being shown if any Red Owl shareholders were pharmacists registered and in good standing in North Dakota. On appeal to the state district court, summary judgment was granted Snyder's. On appeal to the Supreme Court of North Dakota, that court held 2 that the North Dakota statute was unconstitutional by reason of our decision in 1928 in Liggett Co. v. Baldridge, 278 U.S. 105 . That case involved a Pennsylvania statute that required that 100% of the stock of the corporation be owned by pharmacists. The North Dakota statute, however, requires only that a majority of the stock be owned by pharmacists. But the North Dakota Supreme Court held that the difference did not take this case out from under the Liggett case because under both statutes control of the corporation having a pharmacy license had to be in the hands of pharmacists responsible for the management and operation of the pharmacy. That court therefore remanded the case, so that the Board could conduct "an administrative hearing on the application, sans the constitutional issue, pursuant to our Administrative Agencies Practice Act," 202 N. W. 2d 140, 145 (italics added). The case is here on a petition for certiorari which we granted, 411 U.S. 947 . [414 U.S. 156, 159] I We are met at the outset with a suggestion that the judgment of the Supreme Court of North Dakota is not "final" within the meaning of 28 U.S.C. 1257 which restricts our jurisdiction to review state court decisions. 3 The finality requirement of 28 U.S.C. 1257, which limits our review of state court judgments, serves several ends: (1) it avoids piecemeal review of state court decisions; (2) it avoids giving advisory opinions in cases where there may be no real "case" or "controversy" in the sense of Art. III; (3) it limits review of state court determinations of federal constitutional issues to leave at a minimum federal intrusion in state affairs. Mr. Justice Frankfurter, writing for the Court in Radio Station WOW v. Johnson, 326 U.S. 120, 124 , summarized the requirement by Congress that in appeals from federal district courts as well as in review of state court decisions the judgments be "final": "This requirement has the support of considerations generally applicable to good judicial administration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a departure from this requirement of finality for federal appellate jurisdiction. This prerequisite to review derives added force when the jurisdiction of this Court is invoked to upset the decision of a State court. Here we are in the realm of potential conflict between the courts of two different governments. And so, ever since 1789, Congress has granted this Court the power to intervene [414 U.S. 156, 160] in State litigation only after `the highest court of a State in which a decision in the suit could be had' has rendered a `final judgment or decree.' 237 of the Judicial Code, 28 U.S.C. 344 (a). This requirement is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system." But, as he pointed out, this concept of "finality" has a "penumbral area." Ibid. Speaking for the Court in that case, he held that Nebraska's ruling on the legality of a radio license issued by the Federal Communications Commission could be reviewed even though the state court had not yet determined the final accounting. He stated: "Of course, where the remaining litigation may raise other federal questions that may later come here . . . to allow review of an intermediate adjudication would offend the decisive objection to fragmentary reviews." Id., at 127. Mills v. Alabama, 384 U.S. 214 , involved the constitutionality of a state statute in effect making it a crime for a newspaper editor on election day to urge people to vote a certain way on the issues being submitted. The state court held the act did not violate the Federal Constitution and remanded the case for trial. It was argued that the judgment was not "final" for purposes of 28 U.S.C. 1257. We noted that the point had "a surface plausibility, since it is true the judgment of the State Supreme Court did not literally end the case." 384 U.S., at 217 . We held it "final," however, because if the Act were constitutional the editor would in reality have no defense. Since conviction seemed likely, we concluded that to deny review at that stage would "result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets." Id., at 217-218. In Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386 , the question on the merits was whether the requirement [414 U.S. 156, 161] of a state act setting minimum retail prices was consonant with federal law. The state court held the state act constitutional under both the State and the Federal Constitutions and remanded the case for further proceedings. In reliance on Curry and on Langdeau 4 we held that the fact that there were to be further proceedings in the state court did not render the state judgment "nonfinal or unappealable within the meaning of 28 U.S.C. 1257." Id., at 389 n. 4. The exceptions noted 5 have a long lineage dating back [414 U.S. 156, 162] to Mr. Chief Justice Taney's opinion in Forgay v. Conrad, 6 How. 201, where the Court held "final" an interlocutory decree requiring a litigant "to deliver up property which he claims," even though a final accounting has yet to be made. Id., at 205. Unless that interlocutory order was deemed "final," Mr. Chief Justice Taney pointed out, the "right of appeal is of very little value to him and he may be ruined before he is permitted to avail himself of the right." Ibid. It is equally important that we treat the judgment in the instant case as "final," for we have discovered no way which the licensing authority in North Dakota has of preserving the constitutional question now ripe for decision. The Board here denied respondent's application without an evidentiary hearing since the application showed that under the North Dakota Act respondent could in no way qualify for a license. The State Supreme Court held that Act unconstitutional and that thus an applicant failing to meet the requirements of the state statute is nevertheless entitled to consideration for a license. As previously noted, the State Supreme Court, indeed, directed the Board on remand to reconsider the application "sans" the constitutional question. There were state law questions to be considered on the remand, for the state board had also rested its denial of a permit on the failure of Snyder's to meet certain structural and safety standards. The Supreme Court [414 U.S. 156, 163] remanded for an administrative hearing on those other issues. If we deny review at this point, respondent has no constitutional barrier to the grant of a license. The state licensing authority might, of course, after an administrative hearing reinstate its earlier findings that the respondent does not meet the necessary structural and safety standards. If respondent is denied a license for that reason, the denial will obviously be on a state ground. If respondent is granted a license, the battle over the constitutionality of the new Act will be lost as far as this case is concerned. There is no suggestion that "the remaining litigation may raise other federal questions," Radio Station WOW v. Johnson, 326 U.S., at 127 , "such as is true of eminent domain cases." Ibid. For in those cases the federal constitutional question embraces not only a taking, but a taking on payment of just compensation. A state judgment is not final unless it covers both aspects of that integral problem. See Grays Harbor Co. v. Coats-Fordney Co., 243 U.S. 251, 256 . It would appear that, as a matter of North Dakota procedure, the only way in which the Board could preserve the constitutional issue would be to defy its own State Supreme Court and deny the application on the ground of failure to meet the ownership requirement. The state Administrative Agencies Practice Act provides that: "Any party to any proceeding heard by an administrative agency" may appeal from the decision of the agency. N. D. Cent. Code 28-32-15. The statute appears to treat the agency as a tribunal and not as a "party" able to appeal its own order. If the Board thus grants the license in accordance with the State Supreme Court decision and then seeks to appeal its own grant on the basis of the validity of the state ownership requirement, the appeal may well be [414 U.S. 156, 164] dismissed and the dismissal would rest on the independent state ground that state procedural law does not provide the agency the right to appeal. II Liggett, decided in 1928, belongs to that vintage of decisions which exalted substantive due process by striking down state legislation which a majority of the Court deemed unwise. Liggett has to date not been expressly overruled. We commented on it disparagingly, however, in Daniel v. Family Security Life Ins. Co., 336 U.S. 220 , which concerned the constitutionality of a state statute providing that life insurance companies and their agents may not operate an undertaking business and undertakers may not serve as agents for life insurance companies. We noted that Liggett held that it was "clear" that "mere stock ownership in a corporation, owning and operating a drug store, can have no real or substantial relation to the public health; and that the act in question creates an unreasonable and unnecessary restriction upon private business," 278 U.S., at 113 . In Daniel, however, we stated that "a pronounced shift of emphasis since the Liggett case," 336 U.S., at 225 , had deprived the words "unreasonable" and "arbitrary" of the meaning which Liggett ascribed to them. We had indeed held in Lincoln Union v. Northwestern Co., 335 U.S. 525 , that a State had power, so far as the Due Process Clause of the Fourteenth Amendment was concerned, to legislate that no person should be denied the opportunity to obtain or retain employment because he was or was not a member of a labor union. After reviewing Nebbia v. New York, 291 U.S. 502 , Adair v. United States, 208 U.S. 161 , and Coppage v. Kansas, 236 U.S. 1 , we said: "This Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily [414 U.S. 156, 165] rejected the due process philosophy enunciated in the Adair-Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. . . . Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare." 335 U.S., at 536 -537. We reached the same result in Ferguson v. Skrupa, 372 U.S. 726 , where we sustained the constitutionality of a state law prohibiting persons other than lawyers from engaging in the business of debt adjusting and debt pooling. We said: "We conclude that the Kansas Legislature was free to decide for itself that legislation was needed to deal with the business of debt adjusting. Unquestionably, there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us. We refuse to sit as a `superlegislature to weigh the wisdom of legislation,' and we emphatically refuse to go back to the time when courts used the Due Process Clause `to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.' Nor are we able or willing to draw lines by calling a law `prohibitory' or `regulatory.' Whether the legislature [414 U.S. 156, 166] takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas." Id., at 731-732 (footnotes omitted). The majority of the Court in Liggett for which Mr. Justice Sutherland spoke held that business or property rights could be regulated under the Fourteenth Amendment only if the "legislation bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare," 278 U.S., at 111 -112. The majority held the Act governing pharmacies "creates an unreasonable and unnecessary restriction upon private business." Id., at 113. The opposed view stated by Mr. Justice Holmes, and concurred in by Mr. Justice Brandeis, was: "A standing criticism of the use of corporations in business is that it causes such business to be owned by people who do not know anything about it. Argument has not been supposed to be necessary in order to show that the divorce between the power of control and knowledge is an evil. The selling of drugs and poisons calls for knowledge in a high degree, and Pennsylvania after enacting a series of other safeguards has provided that in that matter the divorce shall not be allowed. Of course, notwithstanding the requirement that in corporations hereafter formed all the stockholders shall be licensed pharmacists, it still would be possible for a stockholder to content himself with drawing dividends and to take no hand in the company's affairs. But obviously he would be more likely to observe the business with an intelligent eye than a casual [414 U.S. 156, 167] investor who looked only to the standing of the stock in the market. The Constitution does not make it a condition of preventive legislation that it should work a perfect cure. It is enough if the questioned act has a manifest tendency to cure or at least to make the evil less." Id., at 114-115. Those two opposed views of public policy are considerations for the legislative choice. The Liggett case was a creation at war with the earlier constitutional view of legislative power, Munn v. Illinois, 94 U.S. 113, 132 , 134, and opposed to our more recent decisions. Olsen v. Nebraska, 313 U.S. 236, 241 ; Williamson v. Lee Optical Co., 348 U.S. 483, 487 -488; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 , as well as the Daniel, Lincoln Union, and Ferguson cases already discussed. The Liggett case, being a derelict in the stream of the law, is hereby overruled. We reverse and remand the judgment below and free the courts and agencies of North Dakota from what the State Supreme Court deemed to be the mandate of Liggett. So ordered. Footnotes [Footnote 1 N. D. Cent. Code 43-15-35 (5) (Supp. 1973) provides: "Requirements for permit to operate pharmacy. - The board shall issue a permit to operate a pharmacy, or a renewal permit, upon satisfactory proof that: . . . . . "5. The applicant for such permit is qualified to conduct the pharmacy, and is a registered pharmacist in good standing or is a partnership, each active member of which is a registered pharmacist in good standing, or a corporation or association, the majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy . . . . . . . . "The provision of subsection 5 of this section shall not apply to the holder of a permit on July 1, 1963, if otherwise qualified to conduct the pharmacy, provided that any such permit holder who shall discontinue operations under such permit or fail to renew such permit upon expiration shall not thereafter be exempt from the provisions of such subsection as to such discontinued or lapsed permit. The provisions of subsection 5 of this section shall not apply to hospital pharmacies furnishing service only to patients in such hospital." [Footnote 2 202 N. W. 2d 140. [Footnote 3 "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . . ." 28 U.S.C. 1257. [Footnote 4 We held in Local No. 438 v. Curry, 371 U.S. 542 , that a state court judgment which authorized a temporary injunction against picketing because in the court's view the National Labor Relations Board did not have exclusive jurisdiction was "final" for purposes of 28 U.S.C. 1257. We did not wait until the litigation had been resolved in the state court, as the state court had finally determined its jurisdiction and erroneously so. 371 U.S., at 548 . In Mercantile National Bank v. Langdeau, 371 U.S. 555 , a receiver for a Texas insurance company sued two national banks, and the only question tendered on appeal from the state court concerned the question of venue, viz., in what state court a national bank could be sued. It was argued that the state court judgment was not "final" for purposes of 28 U.S.C. 1257. We rejected that view, holding the judgment "final" and saying: "[W]e believe that it serves the policy underlying the requirement of finality in 28 U.S.C. 1257 to determine now in which state court appellants may be tried rather than to subject them, and appellee, to long and complex litigation which may all be for naught if consideration of the preliminary question of venue is postponed until the conclusion of the proceedings." 371 U.S., at 558 . [Footnote 5 In California v. Stewart, 384 U.S. 436, 498 -499, in a capital case the State Supreme Court set aside the verdict on a federal constitutional ground and directed that the defendant (respondent) be retried. He moved that we dismiss the State's petition, which we had granted, for lack of a "final" judgment. We noted, however, that if on a retrial he were acquitted, there was no appeal available to the State. We therefore held that the judgment under review was "final" for our purposes. Id., at 498 n. 71. In Brady v. Maryland, 373 U.S. 83 , the state court had given a defendant post-conviction relief and remanded the case for retrial [414 U.S. 156, 162] on the question of punishment. We took the case to determine whether the suppression of evidence by the prosecution entitled the defendant to a retrial on the issue of guilt as well as punishment. We held that the issue of guilt was quite independent of the issue of punishment and that it was time to decide the due process and/or equal protection questions presented by the state decision. [414 U.S. 156, 168]

liberal

other

economic_activity

2004-054-01

United States Supreme Court GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al.(2005) No. 03-1454 Argued: November 29, 2004Decided: June 6, 2005 California's Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson's cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents' motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress' Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law. The court relied heavily on United States v. Lopez, 514 U.S. 549, and United States v. Morrison, 529 U.S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power. Held:Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Pp. 6-31. (a)For the purposes of consolidating various drug laws into a comprehensive statute, providing meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which is the CSA. To effectuate the statutory goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U.S.C. §§841(a)(1), 844(a). All controlled substances are classified into five schedules, §812, based on their accepted medical uses, their potential for abuse, and their psychological and physical effects on the body, §§811, 812. Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a). Pp. 6-11. (b)Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U.S. 146, 151. If Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154-155. Of particular relevance here is Wickard v. Filburn, 317 U.S. 111, 127-128, where, in rejecting the appellee farmer's contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. E.g., Lopez, 514 U.S., at 557. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. §801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12-20. (c)Respondents' heavy reliance on Lopez and Morrison overlooks the larger context of modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." Perez, 402 U.S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with "commerce" or any sort of economic enterprise. See Lopez, 514 U.S., at 561; Morrison, 529 U.S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA's constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA's findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim. Pp. 20-30. 352 F.3d 1222, vacated and remanded. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C.J., and Thomas, J., joined as to all but Part III. Thomas, J., filed a dissenting opinion. ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH etal. on writ of certiorari to the united states court ofappeals for the ninth circuit [June 6, 2005] Justice Stevens delivered the opinion of the Court. California is one of at least nine States that authorize the use of marijuana for medicinal purposes.1 The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. I California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana,2 and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.3 The proposition was designed to ensure that "seriously ill" residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps towards ensuring the safe and affordable distribution of the drug to patients in need.4 The Act creates an exemption from criminal prosecution for physicians,5 as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician.6 A "primary caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.7 Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal. Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption. On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. §801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity. The District Court denied respondents' motion for a preliminary injunction. Raich v. Ashcroft, 248 F.Supp. 2d 918 (ND Cal. 2003). Although the court found that the federal enforcement interests "wane[d]" when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. Id., at 931. A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction.8 Raich v. Ashcroft, 352 F.3d 1222 (2003). The court found that respondents had "demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." Id., at 1227. The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and distinct class of activities" at issue in this case: "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." Id., at 1228. The court found the latter class of activities "different in kind from drug trafficking" because interposing a physician's recommendation raises different health and safety concerns, and because "this limited use is clearly distinct from the broader illicit drug market--as well as any broader commercial market for medicinal marijuana--insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce." Ibid. The majority placed heavy reliance on our decisions in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it "simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn." 352 F.3d, at 1235 (Beam, J., dissenting) (citation omitted). The obvious importance of the case prompted our grant of certiorari. 542 U.S. 936 (2004). The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. II Shortly after taking office in 1969, President Nixon declared a national "war on drugs."9 As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs.10 That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236. This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce.11 Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer.12 For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions.13 Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, Pub. L. 75-238, 50 Stat. 551 (repealed 1970).14 Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands.15 Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements.16 Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law.17 Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade. Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. First, in Leary v. United States, 395 U.S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice.18 Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.19 Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.20 Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.21 To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S.C. §§841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. §812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid. 21 CFR §1301 et seq. (2004). In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S.C. §812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW "that marihuana be retained within schedule I at least until the completion of certain studies now underway."22 Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. §812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. §812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. §§823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 490 (2001). The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. §811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.23 III Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder, has evolved over time.24 The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.25 For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.26 Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. §2 et seq.27 Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand. Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. See, e.g., Perez, 317 U.S. 111, 128-129 (1942). As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 274 U.S. 256, 259 (1927) ("[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so")). In this vein, we have reiterated that when "'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" E.g., Lopez, 392 U.S. 183, 196, n.27 (1968)). Our decision in Wickard, 317 U.S. 111, is of particular relevance. In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize "federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm." Wickard, 317 U.S., at 118. Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote: "The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id., at 127-128. Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses ..." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn.20-21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.29 Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a "quintessential economic activity"--a commercial farm--whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning. The fact that Wickard's own impact on the market was "trivial by itself" was not a sufficient reason for removing him from the scope of federal regulation. 317 U.S., at 127. That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Wickard was indeed a commercial farmer, the activity he was engaged in--the cultivation of wheat for home consumption--was not treated by the Court as part of his commercial farming operation.30 And while it is true that the record in the Wickard case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect. Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. See n.20, supra. The submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute.31 Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 512 U.S. 622, 664-668 (1994) (plurality opinion). While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress' authority to legislate.32 In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 452 U.S. 264, 276-280 (1981); Perez, 379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. §801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the several States." U.S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. IV To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those two cases, of course, are Lopez, 514 U.S. 549, and Morrison, 529 U.S. 598. As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." Perez, 402 U.S., at 154 (emphasis deleted) (quoting Wirtz, 392 U.S., at 193); see also Hodel, 452 U.S., at 308. At issue in Lopez, 514 U.S. 549, was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. 104 Stat. 4844-4845, 18 U.S.C. §922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute invalid. We explained: "Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." 514 U.S., at 561. The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat. 1242-1284, was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances." Most of those substances--those listed in Schedules II through V--"have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 U.S.C. §801(1). The regulatory scheme is designed to foster the beneficial use of those medications, to prevent their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, except as a part of a strictly controlled research project. While the statute provided for the periodic updating of the five schedules, Congress itself made the initial classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. 84 Stat. 1248. Marijuana was listed as the 10th item in the third subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, 514 U.S., at 561.34 Our opinion in Lopez casts no doubt on the validity of such a program. Nor does this Court's holding in Morrison, 529 U.S. 598. The Violence Against Women Act of 1994, 108 Stat. 1902, created a federal civil remedy for the victims of gender-motivated crimes of violence. 42 U.S.C. §13981. The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the noneconomic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had identified a clear pattern of analysis: "'Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'"35 Morrison, 529 U.S., at 610. Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality. The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as "the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law." 352 F.3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress' contrary policy judgment, i.e., its decision to include this narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court of Appeals was an essential part of the larger regulatory scheme. First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. 352 F.3d, at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." 21 U.S.C. §801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,37 the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See 21 U.S.C. §§821-830; 21 CFR §1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U.S. 544 (1979). Accordingly, the mere fact that marijuana--like virtually every other controlled substance regulated by the CSA--is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. Nor can it serve as an "objective marke[r]" or "objective facto[r]" to arbitrarily narrow the relevant class as the dissenters suggest, post, at 6 (O'Connor, J., dissenting); post, at 12 (Thomas, J., dissenting). More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "'outer limits' of Congress' Commerce Clause authority," post, at 1 (O'Connor, J., dissenting), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those "'outer limits,'" whether or not a State elects to authorize or even regulate such use. Justice Thomas' separate dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the "'outer limits'" of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but "visible to the naked eye," Lopez, 514 U.S., at 563, under any commonsense appraisal of the probable consequences of such an open-ended exemption. Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is "'superior to that of the States to provide for the welfare or necessities of their inhabitants,'" however legitimate or dire those necessities may be. Wirtz, 266 U.S. 405, 426 (1925)). See also 392 U.S., at 195-196; Wickard, 312 U. S. 100, 114 (1941) ("That power can neither be enlarged nor diminished by the exercise or non-exercise of state power").38 Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes, post, at 16 (O'Connor, J., dissenting), it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.39 And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so.40 The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.41 The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.42 Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.43 Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact Justice O'Connor's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 14, 16, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial. So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." 352 F.3d, at 1229. Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim. V Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion. It is so ordered. ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH etal. on writ of certiorari to the united states court ofappeals for the ninth circuit [June 6, 2005] Justice Scalia, concurring in the judgment. I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. Id., at 150; see United States v. Morrison, 529 U.S. 598, 608-609 (2000); United States v. Lopez, 514 U.S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301-302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting).1 And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. I Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 237 (1948) (intrastate price-fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same). This principle is not without limitation. In Lopez and Morrison, the Court--conscious of the potential of the "substantially affects" test to "'obliterate the distinction between what is national and what is local,'" Lopez, supra, at 566-567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)); see also Morrison, supra, at 615-616--rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564-566; Morrison, supra, at 617-618. "[I]f we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez, supra, at 564; see also Morrison, supra, at 615-616. Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce. As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 312 U.S. 100, 118-119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." 315 U.S., at 118-119. Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121. In Darby, for instance, the Court explained that "Congress, having ... adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U.S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119-121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, id., at 122-123, it affirmed the latter on the sole ground that "[t]he requirement for records even of the intrastate transaction is an appropriate means to a legitimate end," id., at 125. As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give "Congress ... the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions ... may thereby be controlled." 234 U.S., at 353; see also Jones & Laughlin Steel Corp., 301 U.S., at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce). II Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to "little more than a drafting guide." Post, at 5 (opinion of O'Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." Lopez, supra, at 567-568. Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U.S., at 561, and Morrison did not even discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820, 834-835 (CA4 1999) (en banc).) To dismiss this distinction as "superficial and formalistic," see post, at 6 (O'Connor, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See McCulloch v. Maryland, 4 Wheat. 316, 421-422 (1819). And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), affirm that a law is not "'proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." Printz, supra, at 923-924; see also New York, supra, at 166. III The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." Darby, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances--both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S.C. §§841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23-30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See id., at 26-27, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." McCulloch, supra, at 424. Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," id., at 421--except to argue that the CSA regulates an area typically left to state regulation. See post, at 6-7, 11 (opinion of O'Connor, J.); post, at 8-9 (opinion of Thomas, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of Cities v. Usery, 426 U.S. 833, 840 (1976); see Cleveland v. United States, 329 U.S. 14, 19 (1946); McCulloch, supra, at 424. At bottom, respondents' state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree. *** I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See Lopez, 514 U.S., at 561. That is sufficient to authorize the application of the CSA to respondents. ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH etal. on writ of certiorari to the united states court ofappeals for the ninth circuit [June 6, 2005] Justice O'Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting. We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U.S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635 (1993); Whalen v. Roe, 429 U.S. 589, 603, n.30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause--nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U.S. 598 (2000). Accordingly I dissent. I In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm ... at a place the individual knows, or has reasonable cause to believe, is a school zone," 18 U.S.C. §922(q)(2)(A). We explained that "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ..., i.e., those activities that substantially affect interstate commerce." 469 U.S. 528, 585-586 (1985) (O'Connor, J., dissenting) (explaining that United States v. Darby, 312 U.S. 100 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), and Wickard v. Filburn, 317 U.S. 111 (1942), based their expansion of the commerce power on the Necessary and Proper Clause, and that "the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce"); ante, at 2 (Scalia, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power. Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. Lopez, supra, at 559-567; see also Morrison, supra, at 609-613. First, we observed that our "substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that §922(q) was a criminal statute having "nothing to do with 'commerce' or any sort of economic enterprise." Lopez, 514 U.S., at 561. In this regard, we also noted that "[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Ibid. Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Id., at 563. Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy. Id., at 563-567. The Constitution, we said, does not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id., at 567. Later in Morrison, supra, we relied on the same four considerations to hold that §40302 of the Violence Against Women Act of 1994, 42 U.S.C. §13981, exceeded Congress' authority under the Commerce Clause. In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account. II A What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of marijuana. See 21 U.S.C. §§841(a)(1), 844(a). Today's decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause. The Court's principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," ante, at 20, see also ante, at 19, whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of 'controlled substances,'" ibid. Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part. Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," 514 U.S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21-22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation"--thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity, see ante, at 22, n.33; ante, at 6 (Scalia, J., concurring in judgment). I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U.S., at 657 (Breyer, J., dissenting) (given that Congress can regulate "'an essential part of a larger regulation of economic activity,'" "can Congress save the present law by including it, or much of it, in a broader 'Safe Transport' or 'Worker Safety' act?"). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U.S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumeratedpowers. The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious--that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 193 (1968); Wickard, 317 U.S., at 127-128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. See generally Lopez, 514 U.S., at 567; id., at 579 (Kennedy, J., concurring). A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation--including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation--recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently. See 21 U.S.C. §812; Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005); ante, at 1 (opinion of the Court). Respondents challenge only the application of the CSA to medicinal use of marijuana. Cf. United States v. Raines, 362 U.S. 17, 20-22 (1960) (describing our preference for as-applied rather than facial challenges). Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where "States lay claim by right of history and expertise." Lopez, supra, at 583 (Kennedy, J., concurring); see also Morrison, supra, at 617-619; Lopez, supra, at 580 (Kennedy, J., concurring) ("The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required"); cf. Garcia, 469 U.S., at 586 (O'Connor, J., dissenting) ("[S]tate autonomy is a relevant factor in assessing the means by which Congress exercises its powers" under the Commerce Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes. B Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme. The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court's opinion--the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, see Lopez, supra, at 565 ("depending on the level of generality, any activity can be looked upon as commercial")--the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach. The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between "what is national and what is local," Jones & Laughlin Steel, 301 U.S., at 37. It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power. Lopez, supra, at 564. In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See Morrison, 529 U.S., at 611, n.4 (intrastate activities that have been within Congress' power to regulate have been "of an apparent commercial character"); Lopez, 514 U.S., at 561 (distinguishing the Gun-Free School Zones Act of 1990 from "activities that arise out of or are connected with a commercial transaction"). The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear that possession is not itself commercial activity. Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. id., at 583 (Kennedy, J., concurring) ("The statute now before us forecloses the States from experimenting ... and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term"). The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. 317 U.S., at 115-116. The AAA itself confirmed that Congress made an explicit choice not to reach--and thus the Court could not possibly have approved of federal control over--small-scale, noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n.30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook's herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach. Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Garcia, 521 U.S. 898, 923 (1997) (the Necessary and Proper Clause is "the last, best hope of those who defend ultra vires congressional action"). Indeed, if it were enough in "substantial effects" cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are "never more than an instant from the interstate market" in guns already subject to extensive federal regulation, ante, at 8 (Scalia, J., concurring in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court's and the concurrence's logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on "sell[ing]" or "deliver[ing]" firearms or ammunition to "any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age." 18 U.S.C. §922(b)(1) (1988 ed., Supp. II).) There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market--or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U.S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial. In this regard, again, this case is readily distinguishable from Wickard. To decide whether the Secretary could regulate local wheat farming, the Court looked to "the actual effects of the activity in question upon interstate commerce." 317 U.S., at 120. Critically, the Court was able to consider "actual effects" because the parties had "stipulated a summary of the economics of the wheat industry." Id., at 125. After reviewing in detail the picture of the industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent. Id., at 127. With real numbers at hand, the Wickard Court could easily conclude that "a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions" nationwide. Id., at 128; see also id., at 128-129 ("This record leaves us in no doubt" about substantial effects). The Court recognizes that "the record in the Wickard case itself established the causal connection between the production for local use and the national market" and argues that "we have before us findings by Congress to the same effect." Ante, at 17 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA saying that (1) local distribution and possession of controlled substances causes "swelling" in interstate traffic; (2) local production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over intrastate incidents "is essential to effective control" over interstate drug trafficking. 21 U.S.C. §§801(1)-(6). These bare declarations cannot be compared to the record before the Court in Wickard. They amount to nothing more than a legislative insistence that the regulation of controlled substances must be absolute. They are asserted without any supporting evidence--descriptive, statistical, or otherwise. "[S]imply because Congress may conclude a particular activity substantially affects interstate commerce does not necessarily make it so." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 311 (1981) (Rehnquist, J., concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in Morrison should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. 379 U.S. 241, 273 (1964) (Black, J., concurring)). If, as the Court claims, today's decision does not break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in Morrison, while the CSA's abstract, unsubstantiated, generalized findings about controlled substances do? In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the inadequacy of Congress' findings; in part because this case comes to us from the grant of a preliminary injunction, there has been no such development.) Because here California, like other States, has carved out a limited class of activity for distinct regulation, the inadequacy of the CSA's findings is especially glaring. The California Compassionate Use Act exempts from other state drug laws patients and their caregivers "who posses[s] or cultivat[e] marijuana for the personal medical purposes of the patient upon the written or oral recommendation of a physician" to treat a list of serious medical conditions. Cal. Health & Safety Code Ann. §§11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare ibid. with, e.g., §11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); §11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical purposes. §11362.5(b)(2) (West Supp. 2005). To promote the Act's operation and to facilitate law enforcement, California recently enacted an identification card system for qualified patients. §§11362.7-11362.83. We generally assume States enforce their laws, see Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 795 (1988), and have no reason to think otherwise here. The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug's seeping into the market in a significant way. The Government does cite one estimate that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally Wirtz, 392 U.S., at 196, n.27 (Congress cannot use "a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities"); cf. General Accounting Office, Marijuana: Early Experience with Four States' Laws That Allow Use for Medical Purposes 21-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/d03189.pdf (as visited June 3, 2005 and available in Clerk of Court's case file) (in four California counties before the identification card system was enacted, voluntarily registered medical marijuana patients were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants represented less than 0.05 percent of the States' populations). It also provides anecdotal evidence about the CSA's enforcement. See Reply Brief for Petitioners 17-18. The Court also offers some arguments about the effect of the Compassionate Use Act on the national market. It says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, they add little to the CSA's conclusory statements about diversion, essentiality, and market effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison. III We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent. ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH etal. on writ of certiorari to the united states court ofappeals for the ninth circuit [June 6, 2005] Justice Thomas, dissenting. Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers. I Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U.S. Const., Art.I, §8, cl.3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art.I, §8, cl.18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct. A As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589 (concurring opinion). The Clause's text, structure, and history all indicate that, at the time of the founding, the term "'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange--not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857-862 (2003). Even the majority does not argue that respondents' conduct is itself "Commerce among the several States." Art.I, §8, cl.3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California--it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S.C. §801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market--intrastate or interstate, noncommercial or commercial--for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial. B More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate commerce. Art.I, §8, cl.18. The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.2 In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id., at 421. To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution." Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 (1985). The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause. 1 Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. Art.I, §8, cl.18. See 21 U.S.C. §801(6). However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate commerce." Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational-basis review). It must be "plainly adapted" to regulating interstate marijuana trafficking--in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce. Sabri v. United States, 541 U.S. 600, 613 (2004) (Thomas, J., concurring in judgment); see also United States v. Dewitt, 9 Wall. 41, 44 (1870) (finding ban on intrastate sale of lighting oils not "appropriate and plainly adapted means for carrying into execution" Congress' taxing power). On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 9-10, 19 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.3 Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 6-7 (O'Connor, J., dissenting). The Court of Appeals found that respondents' "limited use is distinct from the broader illicit drug market," because "th[eir] medicinal marijuana ... is not intended for, nor does it enter, the stream of commerce." Raich v. Ashcroft, 352 F.3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich. California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits "the diversion of marijuana for nonmedical purposes," §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715-.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004). This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective. The scant evidence that exists suggests that few people--the vast majority of whom are aged 40 or older--register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 22-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/d01389.pdf (all Internet materials as visited on June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. Id., at 32. These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. People v. Mower, 28 Cal. 4th 457, 469-470, 49 P.3d 1067, 1073-1075 (2002); People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997). Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use--drugs like morphine and amphetamines--are available by prescription. 21 U.S.C. §§812(b)(2)(A)-(B); 21 CFR §1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions. But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market. To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U.S.C. §801(6). But as Justice O'Connor points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 13-14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments. In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana. 2 Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., at 421. In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. 529 U.S. 598, 627 (2000) (Thomas, J., concurring). Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see Dewitt, 9 Wall., at 44; but see Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U.Pa. J. Const. L. 183, 186 (2003) (detailing statements by Founders that the Necessary and Proper Clause was not intended to expand the scope of Congress' enumerated powers), Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. Printz v. United States, 521 U.S. 898, 923-924 (1997); Alden v. Maine, 527 U.S. 706, 732-733 (1999); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585 (1985) (O'Connor, J., dissenting); The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist). Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.5 Brecht v. Abrahamson, 507 U.S. 619, 635 (1993); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). Further, the Government's rationale--that it may regulate the production or possession of any commodity for which there is an interstate market--threatens to remove the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L.J. 825, 826, 841 (2000) (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext ... for the accomplishment of objects not intrusted to the government." McCulloch, supra, at 423. II The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 19; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at 21-22; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at 19-20. Justice O'Connor explains why the majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws. A The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design. Morrison, supra, at 627 (Thomas, J., concurring). The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce--any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9-10, the question is whether Congress' legislation is essential to the regulation of interstate commerce itself--not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment). The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 7-8. The majority ignores that whether a particular activity substantially affects interstate commerce--and thus comes within Congress' reach on the majority's approach--can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6-7 (O'Connor, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.6 The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 ("[T]hus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature" (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the "'the production, distribution, and consumption of commodities.'"7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8-9 (O'Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison). Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.8 The majority's opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from "'commerce,'" ante, at 1, to "commercial" and "economic" activity, ante, at 20, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established ... interstate market," ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it. The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 15-16; Lopez, 514 U.S., at 573-574 (Kennedy, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590-593 (Thomas, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce--not to mention a host of local activities, like mere drug possession, that are not commercial. One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that "'[t]he Constitution created a Federal Government of limited powers.'" New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may regulate interstate commerce--not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate commerce. B The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 19-20, 21-22. I have already explained why the CSA's ban on local activity is not essential. Supra, at 7-8. However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 19. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause. Nevertheless, the majority terms this the "pivotal" distinction between the present case and Lopez and Morrison. Ante, at 20. In Lopez and Morrison, the parties asserted facial challenges, claiming "that a particular statute or provision fell outside Congress' commerce power in its entirety." Ante, at 20. Here, by contrast, respondents claim only that the CSA falls outside Congress' commerce power as applied to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid statutory scheme." Ante, at 20-21; see also Perez v. United States, 402 U.S. 146, 154 (1971); Maryland v. Wirtz, 392 U.S. 183, 192-193 (1968). It is true that if respondents' conduct is part of a "class of activities ... and that class is within the reach of federal power," Perez, supra, at 154 (emphases deleted), then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27. Ante, at 6 (O'Connor, J., dissenting). But that begs the question at issue: whether respondents' "class of activities" is "within the reach of federal power," which depends in turn on whether the class is defined at a low or a high level of generality. Supra, at 5. If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable." 21 U.S.C. §901 (emphasis added); see also United States v. Booker, 543 U.S. ___, ___ (2005) (slip op., at 9, and n.9) (Thomas, J., dissenting in part). Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress' power in Lopez and Morrison, but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United States v. Raines, 362 U.S. 17, 20-21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U.S. 294, 295 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 249 (1964); Wickard v. Filburn, 317 U.S. 111, 113-114 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental. If the majority is correct that Lopez and Morrison are distinct because they were facial challenges to "particular statute[s] or provision[s]," ante, at 20, then congressional power turns on the manner in which Congress packages legislation. Under the majority's reasoning, Congress could not enact--either as a single-subject statute or as a separate provision in the CSA--a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. Lopez, 514 U.S., at 600-601 (Thomas, J., concurring). Finally, the majority's view--that because some of the CSA's applications are constitutional, they must all be constitutional--undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate market. "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Id., at 600 (Thomas, J., concurring). The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA. *** The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern," id., at 583 (Kennedy, J., concurring). The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent. FOOTNOTESFootnote 1See Alaska Stat. §§11.71.090, 17.37.010-17.37.080 (Lexis 2004); Colo. Const., Art. XVIII, §14, Colo. Rev. Stat. §18-18-406.3 (Lexis 2004); Haw. Rev. Stat. §§329-121 to 329-128 (2004 Cum. Supp.); Me. Rev. Stat. Ann., Tit. 22, §2383-B(5) (West 2004); Nev. Const., Art. 4, §38, Nev. Rev. Stat. §§453A.010-453A.810 (2003); Ore. Rev. Stat. §§475.300-475.346 (2003); Vt. Stat. Ann., Tit. 18, §§4472-4474d (Supp. 2004); Wash. Rev. Code §§69.51.010-69.51.080 (2004); see also Ariz. Rev. Stat. Ann. §13-3412.01 (West Supp. 2004) (voter initiative permitting physicians to prescribe Schedule I substances for medical purposes that was purportedly repealed in 1997, but the repeal was rejected by voters in 1998). In November 2004, Montana voters approved Initiative 148, adding to the number of States authorizing the use of marijuana for medical purposes. Footnote 21913 Cal. Stats. ch. 324, §8a; see also Gieringer, The Origins of Cannabis Prohibition in California, Contemporary Drug Problems, 21-23 (rev. 2005). Footnote 3Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005). The California Legislature recently enacted additional legislation supplementing the Compassionate Use Act. §§11362.7-11362.9 (West Supp. 2005). Footnote 4"The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: "(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. "(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. "(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." §11362.5(b)(1) (West Supp. 2005). Footnote 5"Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes." §11362.5(c) (West Supp. 2005). Footnote 6"Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." §11362.5(d) (West Supp. 2005). Footnote 7§11362.5(e) (West Supp. 2005). Footnote 8On remand, the District Court entered a preliminary injunction enjoining petitioners "'from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, non-commercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale, or exchange.'" Brief for Petitioners 9. Footnote 9See D. Musto & P. Korsmeyer, The Quest for Drug Control 60 (2002) (hereinafter Musto & Korsmeyer). Footnote 10H.R. Rep. No. 91-1444, pt. 2, p.22 (1970) (hereinafter H.R. Rep.); 26 Congressional Quarterly Almanac 531 (1970) (hereinafter Almanac); Musto & Korsmeyer 56-57. Footnote 11Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, repealed by Act of June 25, 1938, ch. 675, §902(a), 52 Stat. 1059. Footnote 12See United States v. Doremus, 249 U.S. 86 (1919); Leary v. United States, 395 U.S. 6, 14-16 (1969). Footnote 13See Doremus, 249 U.S., at 90-93. Footnote 14R. Bonnie & C. Whitebread, The Marijuana Conviction 154-174 (1999); L. Grinspoon & J. Bakalar, Marihuana, the Forbidden Medicine 7-8 (rev. ed. 1997) (hereinafter Grinspoon & Bakalar). Although this was the Federal Government's first attempt to regulate the marijuana trade, by this time all States had in place some form of legislation regulating the sale, use, or possession of marijuana. R. Isralowitz, Drug Use, Policy, and Management 134 (2d ed. 2002). Footnote 15Leary, 395 U.S., at 14-16. Footnote 16Grinspoon & Bakalar 8. Footnote 17Leary, 395 U.S., at 16-18. Footnote 18Musto & Korsmeyer 32-35; 26 Almanac 533. In 1973, the Bureau of Narcotics and Dangerous Drugs became the Drug Enforcement Administration (DEA). See Reorg. Plan No. 2 of 1973, §1, 28 CFR §0.100 (1973). Footnote 19The Comprehensive Drug Abuse Prevention and Control Act of 1970 consists of three titles. Title I relates to the prevention and treatment of narcotic addicts through HEW (now the Department of Health and Human Services). 84 Stat. 1238. Title II, as discussed in more detail above, addresses drug control and enforcement as administered by the Attorney General and the DEA. Id., at 1242. Title III concerns the import and export of controlled substances. Id., at 1285. Footnote 20In particular, Congress made the following findings: "(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people. "(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people. "(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because-- "(A) after manufacture, many controlled substances are transported in interstate commerce, "(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and "(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession. "(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances. "(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate. "(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." 21 U.S.C. §§801(1)-(6). Footnote 21See United States v. Moore, 423 U.S. 122, 135 (1975); see alsoH. R. Rep., at 22. Footnote 22H.R. Rep., at 61 (quoting letter from Roger E. Egeberg, M.D. to Hon. Harley O. Staggers (Aug. 14, 1970)). Footnote 23Starting in 1972, the National Organization for the Reform of Marijuana Laws (NORML) began its campaign to reclassify marijuana. Grinspoon & Bakalar 13-17. After some fleeting success in 1988 when an Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, Grinspoon v. DEA, 828 F.2d 881, 883-884 (CA1 1987), the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg. 53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1133 (1994). Footnote 24United States v. Lopez, 514 U.S. 549, 552-558 (1995); id., at 568-574 (Kennedy, J., concurring); id., at 604-607 (Souter, J., dissenting). Footnote 25 See Gibbons v. Ogden, 9 Wheat. 1, 224 (1824) (opinion of Johnson, J.); Stern, That Commerce Which Concerns More States Than One, 47 Harv. L.Rev. 1335, 1337, 1340-1341 (1934); G. Gunther, Constitutional Law 127 (9th ed. 1975). Footnote 26See Lopez, 514 U.S., at 553-554; id., at 568-569 (Kennedy, J., concurring); see also Granholm v. Heald, 544 U.S. __, __ (2005) (slip op., at 8-9). Footnote 27Lopez, 317 U.S. 111, 121 (1942) ("It was not until 1887, with the enactment of the Interstate Commerce Act, that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder" (footnotes omitted)). Footnote 28Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. App. 59, 74, 87. See also Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 770, 774, n.12, and 780, n.17 (1994) (discussing the "market value" of marijuana); id., at 790 (Rehnquist, C.J., dissenting); id., at 792 (O'Connor, J., dissenting); Whalen v. Roe, 429 U.S. 589, 591 (1977) (addressing prescription drugs "for which there is both a lawful and an unlawful market"); Turner v. United States, 396 U.S. 398, 417, n.33 (1970) (referring to the purchase of drugs on the "retail market"). Footnote 29To be sure, the wheat market is a lawful market that Congress sought to protect and stabilize, whereas the marijuana market is an unlawful market that Congress sought to eradicate. This difference, however, is of no constitutional import. It has long been settled that Congress' power to regulate commerce includes the power to prohibit commerce in a particular commodity. Lopez, 188 U.S. 321 (1903), the Court rejected the argument that Congress lacked [the] power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit"); see also Wickard, 317 U.S., at 128 ("The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon"). Footnote 30See Wickard, 317 U.S., at 125 (recognizing that Wickard's activity "may not be regarded as commerce"). Footnote 31The Executive Office of the President has estimated that in 2000 American users spent $10.5 billion on the purchase of marijuana. Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), available at http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index.html (all Internet materials as visited June 2, 2005, and available in Clerk of Court's case file). Footnote 32Moreover, as discussed in more detail above, Congress did make findings regarding the effects of intrastate drug activity on interstate commerce. See n.20, supra. Indeed, even the Court of Appeals found that those findings "weigh[ed] in favor" of upholding the constitutionality of the CSA. 352 F.3d 1222, 1232 (CA9 2003) (case below). The dissenters, however, would impose a new and heightened burden on Congress (unless the litigants can garner evidence sufficient to cure Congress' perceived "inadequa[cies]")--that legislation must contain detailed findings proving that each activity regulated within a comprehensive statute is essential to the statutory scheme. Post, at 13-15 (O'Connor, J., dissenting); post, at 8 (Thomas, J., dissenting). Such an exacting requirement is not only unprecedented, it is also impractical. Indeed, the principal dissent's critique of Congress for "not even" including "declarations" specific to marijuana is particularly unpersuasive given that the CSA initially identified 80 other substances subject to regulation as Schedule I drugs, not to mention those categorized in Schedules II-V. Post, at 14 (O'Connor, J., dissenting). Surely, Congress cannot be expected (and certainly should not be required) to include specific findings on each and every substance contained therein in order to satisfy the dissenters' unfounded skepticism. Footnote 33See n.21, supra (citing sources that evince Congress' particular concern with the diversion of drugs from legitimate to illicit channels). Footnote 34The principal dissent asserts that by "[s]eizing upon our language in Lopez," post, at 5 (opinion of O'Connor, J.), i.e., giving effect to our well-established case law, Congress will now have an incentive to legislate broadly. Even putting aside the political checks that would generally curb Congress' power to enact a broad and comprehensive scheme for the purpose of targeting purely local activity, there is no suggestion that the CSA constitutes the type of "evasive" legislation the dissent fears, nor could such an argument plausibly be made. Post, at 6 (O'Connor, J., dissenting). Footnote 35Lopez, 514 U.S., at 560; see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy"). Footnote 36See 16 U.S.C. §668(a) (bald and golden eagles); 18 U.S.C. §175(a) (biological weapons); §831(a) (nuclear material); §842(n)(1) (certain plastic explosives); §2342(a) (contraband cigarettes). Footnote 37We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that "[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation"); see also Conant v. Walters, 309 F.3d 629, 640-643 (CA9 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction. Footnote 38That is so even if California's current controls (enacted eight years after the Compassionate Use Act was passed) are "[e]ffective," as the dissenters would have us blindly presume, post, at 15 (O'Connor, J., dissenting); post, at 6, 12 (Thomas, J., dissenting). California's decision (made 34 years after the CSA was enacted) to impose "stric[t] controls" on the "cultivation and possession of marijuana for medical purposes," post, at 6 (Thomas, J., dissenting), cannot retroactively divest Congress of its authority under the Commerce Clause. Indeed, Justice Thomas' urgings to the contrary would turn the Supremacy Clause on its head, and would resurrect limits on congressional power that have long since been rejected. See post, at 8 (Scalia, J., concurring in judgment) (quoting McCulloch v. Maryland, 4 Wheat. 316, 424 (1819)) ("'To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution'"). Moreover, in addition to casting aside more than a century of this Court's Commerce Clause jurisprudence, it is noteworthy that Justice Thomas' suggestion that States possess the power to dictate the extent of Congress' commerce power would have far-reaching implications beyond the facts of this case. For example, under his reasoning, Congress would be equally powerless to regulate, let alone prohibit, the intrastate possession, cultivation, and use of marijuana for recreational purposes, an activity which all States "strictly contro[l]." Indeed, his rationale seemingly would require Congress to cede its constitutional power to regulate commerce whenever a State opts to exercise its "traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens." Post, at 9-10 (dissenting opinion). Footnote 39California's Compassionate Use Act has since been amended, limiting the catchall category to "[a]ny other chronic or persistent medical symptom that either: ... [s]ubstantially limits the ability of the person to conduct one or more major life activities as defined" in the Americans with Disabilities Act of 1990, or "[i]f not alleviated, may cause serious harm to the patient's safety or physical or mental health." Cal. Health & Safety Code Ann. §§11362.7(h)(12)(A) to (12)(B) (West Supp. 2005). Footnote 40See, e.g., United States v. Moore, 423 U.S. 122 (1975); United States v. Doremus, 249 U.S. 86 (1919). Footnote 41The state policy allows patients to possess up to eight ounces of dried marijuana, and to cultivate up to 6 mature or 12 immature plants. Cal. Health & Safety Code Ann. §11362.77(a) (West Supp. 2005). However, the quantity limitations serve only as a floor. Based on a doctor's recommendation, a patient can possess whatever quantity is necessary to satisfy his medical needs, and cities and counties are given carte blanche to establish more generous limits. Indeed, several cities and counties have done just that. For example, patients residing in the cities of Oakland and Santa Cruz and in the counties of Sonoma and Tehama are permitted to possess up to 3 pounds of processed marijuana. Reply Brief for United States 19 (citing Proposition 215 Enforcement Guidelines). Putting that quantity in perspective, 3 pounds of marijuana yields roughly 3,000 joints or cigarettes. Executive Office of the President, Office of National Drug Control Policy, What America's Users Spend on Illegal Drugs 24 (Dec. 2001), http://www.whitehousedrugpolicy.gov/publications/pdf/american_users_spend_2002.pdf. And the street price for that amount can range anywhere from $900 to $24,000. DEA, Illegal Drug Price and Purity Report (Apr. 2003) (DEA-02058). Footnote 42For example, respondent Raich attests that she uses 2.5 ounces of cannabis a week. App. 82. Yet as a resident of Oakland, she is entitled to possess up to 3 pounds of processed marijuana at any given time, nearly 20 times more than she uses on a weekly basis. Footnote 43See, e.g., People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1386-1387 (1997) (recounting how a Cannabis Buyers' Club engaged in an "indiscriminate and uncontrolled pattern of sale to thousands of persons among the general public, including persons who had not demonstrated any recommendation or approval of a physician and, in fact, some of whom were not under the care of a physician, such as undercover officers," and noting that "some persons who had purchased marijuana on respondents' premises were reselling it unlawfully on the street"). FOOTNOTESFootnote 1See also Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 584-585 (1985) (O'Connor, J., dissenting) (explaining that it is through the Necessary and Proper Clause that "an intrastate activity 'affecting' interstate commerce can be reached through the commerce power"). Footnote 2Wickard v. Filburn, 317 U.S. 111 (1942), presented such a case. Because the unregulated production of wheat for personal consumption diminished demand in the regulated wheat market, the Court said, it carried with it the potential to disrupt Congress's price regulation by driving down prices in the market. Id., at 127-129. This potential disruption of Congress's interstate regulation, and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress's regulation of that conduct. Id., at 128-129. Footnote 3The principal dissent claims that, if this is sufficient to sustain the regulation at issue in this case, then it should also have been sufficient to sustain the regulation at issue in United States v. Lopez, 514 U.S. 549 (1995). See post, at 11-12 (arguing that "we could have surmised in Lopez that guns in school zones are 'never more than an instant from the interstate market' in guns already subject to federal regulation, recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act"). This claim founders upon the shoals of Lopez itself, which made clear that the statute there at issue was "not an essential part of a larger regulation of economic activity." Lopez, supra, at 561 (emphasis added). On the dissent's view of things, that statement is inexplicable. Of course it is in addition difficult to imagine what intelligible scheme of regulation of the interstate market in guns could have as an appropriate means of effectuation the prohibition of guns within 1000 feet of schools (and nowhere else). The dissent points to a federal law, 18 U.S.C. §922(b)(1), barring licensed dealers from selling guns to minors, see post, at 12, but the relationship between the regulatory scheme of which §922(b)(1) is a part (requiring all dealers in firearms that have traveled in interstate commerce to be licensed, see §922(a)) and the statute at issue in Lopez approaches the nonexistent--which is doubtless why the Government did not attempt to justify the statute on the basis of that relationship. FOOTNOTESFootnote 1McCulloch v. Maryland, 4 Wheat. 316, 419-421 (1819); Madison, The Bank Bill, House of Representatives (Feb. 2, 1791), in 3 The Founders' Constitution 244 (P. Kurland & R. Lerner eds. 1987) (requiring "direct" rather than "remote" means-end fit); Hamilton, Opinion on the Constitutionality of the Bank (Feb. 23, 1791), in id., at 248, 250 (requiring "obvious" means-end fit, where the end was "clearly comprehended within any of the specified powers" of Congress). Footnote 2McCulloch, supra, at 413-415; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, p. 162 (1985). Footnote 3Because respondents do not challenge on its face the CSA's ban on marijuana, 21 U.S.C. §§841(a)(1), 844(a), our adjudication of their as-applied challenge casts no doubt on this Court's practice in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). In those cases, we held that Congress, in enacting the statutes at issue, had exceeded its Article I powers. Footnote 4Other States likewise prohibit diversion of marijuana for nonmedical purposes. See, e.g., Colo. Const., Art. XVIII, §14(2)(d); Nev. Rev. Stat. §§453A.300(1)(e)-(f) (2003); Ore. Rev. Stat. §§475.316(1)(c)-(d) (2003). Footnote 5In fact, the Anti-Federalists objected that the Necessary and Proper Clause would allow Congress, inter alia, to "constitute new Crimes, . . . and extend [its] Power as far as [it] shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights." Mason, Objections to the Constitution Formed by the Convention (1787), in 2 The Complete Anti-Federalist 11, 12-13 (H. Storing ed. 1981) (emphasis added). Hamilton responded that these objections were gross "misrepresentation[s]." The Federalist No. 33, at 204. He termed the Clause "perfectly harmless," for it merely confirmed Congress' implied authority to enact laws in exercising its enumerated powers. Id., at 205; see also Lopez, 514 U.S., at 597, n.6 (Thomas, J., concurring) (discussing Congress' limited ability to establish nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426-428 (1821) (finding it "clear that [C]ongress cannot punish felonies generally," except in areas over which it possesses plenary power). According to Hamilton, the Clause was needed only "to guard against cavilling refinements" by those seeking to cripple federal power. The Federalist No. 33, at 205; id., No. 44, at 303-304 (J. Madison). Footnote 6Remarkably, the majority goes so far as to declare this question irrelevant. It asserts that the CSA is constitutional even if California's current controls are effective, because state action can neither expand nor contract Congress' powers. Ante, at 27, n. 38. The majority's assertion is misleading. Regardless of state action, Congress has the power to regulate intrastate economic activities that substantially affect interstate commerce (on the majority's view) or activities that are necessary and proper to effectuating its commerce power (on my view). But on either approach, whether an intrastate activity falls within the scope of Congress' powers turns on factors that the majority is unwilling to confront. The majority apparently believes that even if States prevented any medical marijuana from entering the illicit drug market, and thus even if there were no need for the CSA to govern medical marijuana users, we should uphold the CSA under the Commerce Clause and the Necessary and Proper Clause. Finally, to invoke the Supremacy Clause, as the majority does, ibid., is to beg the question. The CSA displaces California's Compassionate Use Act if the CSA is constitutional as applied to respondents' conduct, but that is the very question at issue. Footnote 7Other dictionaries do not define the term "economic" as broadly as the majority does. See, e.g., The American Heritage Dictionary of the English Language 583 (3d ed. 1992) (defining "economic" as "[o]f or relating to the production, development, and management of material wealth, as of a country, household, or business enterprise" (emphasis added)). The majority does not explain why it selects a remarkably expansive 40-year-old definition. Footnote 8See, e.g., id., at 380 ("[t]he buying and selling of goods, especially on a large scale, as between cities or nations"); The Random House Dictionary of the English Language 411 (2d ed. 1987) ("an interchange of goods or commodities, esp. on a large scale between different countries ... or between different parts of the same country"); Webster's 3d 456 ("the exchange or buying and selling of commodities esp. on a large scale and involving transportation from place to place").

liberal

person

federalism

2007-003-01

United States Supreme Court CSX TRANSPORTATION, INC. v. GEORGIA STATE BOARD OF EQUALIZATION ET AL.(2007) No. 06-1287 Argued: November 5, 2007Decided: December 4, 2007 Under Georgia law, most commercial and industrial property is valued locally by county boards for tax purposes, but public utilities such as petitioner railroad (CSX) are initially valued by the State. In 2002, respondent Georgia state board used a different combination of methodologies than it had in 2001 to determine that the market value of CSX's in-state real property had increased 47 percent, resulting in a significantly higher advalorem tax levy. CSX filed suit under the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or Act), which bars States from, inter alia, "[a]ssess[ing] rail transportation property at a value that has a higher ratio to the [property's] true market value ... than the ratio" between the assessed and true market values of other commercial and industrial property in the same taxing jurisdiction, 49 U.S.C. §11501(b)(1), and authorizes the federal district court to enjoin the tax if the railroad ratio exceeds the ratio for other property by at least five percent, §11501(c). CSX alleged that Georgia had grossly overestimated the market value of its in-state rail property while accurately valuing other commercial and industrial property in the State, so that CSX's property was taxed at a ratio of assessed-to-market value considerably more than 5 percent greater than the same ratio for the other in-state property. Ruling that Georgia had not discriminated against CSX in violation of the 4-R Act because the State had used widely accepted valuation methods to arrive at its 2002 estimate of true market value, the District Court declared that the Act does not allow a railroad to challenge a State's chosen methodology if it is rational and not motivated by discriminatory intent. The Eleventh Circuit panel affirmed, reasoning that the Act does not clearly state that railroads may challenge valuation methodologies, and that such a clear statement was required in light of the intrusion on state taxing prerogatives. Held:The 4-R Act allows a railroad to attempt to show that state methods for determining the value of railroad property result in a discriminatory determination of true market value. Pp.5-12. (a)The Act's language is clear. States may not tax railroad property at a ratio of assessed-to-true-market value higher than the ratio for other commercial and industrial property in the same jurisdiction. To apply the Act, district courts must calculate the true market value of in-state railroad property. A court cannot undertake the comparison of ratios the statute requires without that figure at hand, see Burlington Northern R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, and the determination of true market value may be affected by the State's choice of valuation methods. Georgia's argument that valuation methodologies must be distinguished from their application, and that the Act allows courts to question only the latter, is rejected. There is no distinction between method and application in the Act's language and no passage limiting district court factfinding as the State proposes. Georgia's position is untenable given the way market value is calculated. Valuation is not a matter of mathematics, but an applied science, even a craft. Most appraisers estimate market value by employing not one methodology but a combination because no one approach is entirely accurate, at least in the absence of an established market for the type of property at issue. The individual methods yield sometimes more, sometimes less reliable results depending on the peculiar features of the property evaluated. Given the extent to which the chosen methods can affect the determination of value, preventing courts from scrutinizing state valuation methodologies would render §11501 a largely empty command, forcing district courts to accept as "true" the market value estimate of the State, one of the parties to the litigation. States, in turn, would be free to employ appraisal techniques that routinely overestimate the market worth of railroad assets. By then levying taxes based on those overestimates, States could implement the very discriminatory taxation Congress sought to eradicate. Courts would be powerless to stop them, and the Act would ultimately guarantee railroads nothing more than mathematically accurate discriminatory taxation. The State's warning that allowing railroads to introduce their own valuation estimates based on different methodologies will inevitably lead to a futile clash of experts, which courts will have no reasonable way to settle, is not compelling, given that Congress was not similarly troubled. Rather, Congress directed courts to find true market value, however elusive, making that value the objective benchmark for courts' evaluation. Property valuation, though admittedly complex, is at bottom just "an issue of fact about possible market prices," Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 741, an issue district courts are used to addressing. In light of the statute's directive making true market value a factual question to be determined by the district court, what Georgia really seeks is to limit the types of evidence courts may consider as part of their factual inquiry. Had Congress intended to impose such a limit, it could easily have included language insulating the State's chosen methodologies from judicial scrutiny. It did not. Pp.5-9. (b)The State argues that any interpretation of the Act allowing courts to question state valuation methods ignores the background principles of federalism against which the statute was enacted. Even if important state policy questions are intertwined with the selection of a valuation methodology, however, Congress clearly permitted courts to question such methodologies when it banned discriminatory assessment ratios and made true market value a question to be litigated in federal court. Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 343-344, distinguished. The Court also disagrees with Georgia's claim that the Court's interpretation will destroy the States' discretion to choose their own valuation methodologies. A State may use whatever method it likes, so long as the result is not discriminatory in violation of the Act. Pp.9-12. 472 F.3d 1281, reversed. Roberts, C.J., delivered the opinion for a unanimous Court. CSX TRANSPORTATION, INC., PETITIONER v.GEORGIA STATE BOARD OFEQUALIZATION etal. on writ of certiorari to the united states court of appeals for the eleventh circuit [December 4, 2007] Chief Justice Roberts delivered the opinion of the Court. The Railroad Revitalization and Regulatory Reform Act prohibits States from discriminating against railroads by taxing railroad property more heavily than other commercial property in the State. Two decades ago, we held that this statute permits an aggrieved railroad to challenge a State's valuation of its property for tax purposes. Burlington Northern R.Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 462 (1987). Because the railroad in that case challenged only the State's application of its valuation methods, we expressly reserved the question whether a railroad may challenge the State's methods themselves. We answer that question today, and hold that railroads may challenge state methods for determining the value of railroad property, as well as how those methods are applied. The statute provides for nothing less. I Congress enacted the Railroad Revitalization and Regulatory Reform Act in 1976. 90 Stat. 31.1 Called the "4-R Act" for brevity, the law aimed to halt the economic decline of the rail industry by, among other means, barring "discriminatory state taxation of railroad property." Burlington Northern, supra, at 457; see also Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 336 (1994). The 4-R Act prohibits four separate forms of discriminatory state taxation of railroads.2 Only the first is at issue here: States, the Act provides, may not "[a]ssess rail transportation property at a value that has a higher ratio to the [property's] true market value . . . than the ratio" between the assessed and true market values of other commercial and industrial property in the same taxing jurisdiction. 49 U.S.C. §11501(b)(1). If the railroad ratio exceeds the ratio for other property by at least five percent, the district court may enjoin the tax. §11501(c).3 Petitioner CSX Transportation, Inc., is a freight rail carrier with multiple routes across the State of Georgia. As a consequence, it is subject to Georgia's ad valorem tax on real property. Under Georgia law, most commercial and industrial property is valued locally by county boards. Public utilities such as railroads, however, are initially valued by the State, which then certifies the proposed valuations to the county boards for adoption or alteration. In 2001, Georgia's State Board of Equalization, a respondent here, put CSX's ad valorem tax liability at $4.6 million. A year later, the State's appraiser used a different combination of methodologies to determine the market value of CSX's in-state property.4 The result was a significantly higher tax levy. The State estimated the railroad's 2002 market value at approximately $7.8 billion, 472 F.3d 1281, 1285 (CA11 2006), a 47 percent increase over the previous year. That brought the assessed value of CSX's Georgia property to $514.9 million, for a final property tax bill of $6.5 million. Brief for Petitioner 15. CSX filed suit in the United States District Court for the Northern District of Georgia, contending that the State's 2002 tax assessment violated the 4-R Act. The railroad alleged that Georgia had grossly overestimated the market value of its in-state property while accurately valuing other commercial and industrial property in the State. The result, according to CSX, was that its rail property was taxed at a ratio of assessed-to-market value considerably more than 5 percent greater than the same ratio for the other property in the State. To make its case, CSX submitted the testimony of its own expert appraiser, who relied on a combination of valuation methods different from those used by the appraiser for Georgia. The CSX appraiser calculated the 2002 market value of the railroad's property to be $6 billion, not the $7.8 billion figure used by the State. 472 F.3d, at 1285-1286. CSX maintained that the state appraiser's valuation methodologies were flawed, and urged the District Court to accept the market value estimated by its expert as more accurate. The District Court refused to do so. Following a bench trial, the court ruled Georgia had not discriminated against CSX in violation of the 4-R Act because the State had used widely accepted valuation methods to arrive at its estimate of true market value. 448 F.Supp. 2d 1330, 1341 (ND Ga. 2005). In the judgment of the District Court, the Act "does not generally allow a railroad to challenge the state's chosen methodology," as long as the State's methods are rational and not motivated by discriminatory intent. Ibid. A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. 472 F.3d 1281 (2006). The majority reasoned that the "text of the Act does not clearly state that railroads may challenge valuation methodologies," and that such a clear statement was required in light of the intrusion on state taxing prerogatives. Id., at 1289. Judge Fay dissented. Id., at 1292. Recognizing the division on this question among the Circuits, compare Consolidated Rail Corp. v. Hyde Park, 47 F. 3d 473, 481-482 (CA2 1995) (a railroad may challenge a State's valuation methodology), and Burlington Northern R.Co. v. Department of Revenue of Wash., 23 F. 3d 239, 240-241 (CA9 1994) (same), with Chesapeake Western Ry. v. Forst, 938 F. 2d 528, 531 (CA4 1991) (a railroad may not challenge a State's valuation methodology), and 472 F.3d, at 1289 (decision below), we granted certiorari, 550 U.S. ___ (2007), and now reverse. II "[T]he language of §1150[1] plainly declares the congressional purpose." Burlington Northern, 481 U.S., at 461. States may not tax railroad property at a ratio of assessed-to-true-market value higher than the ratio for other commercial and industrial property in the same jurisdiction. In order to apply the Act, district courts must calculate the true market value of in-state railroad property. A court cannot undertake the comparison of ratios the statute requires without that figure at hand. We said as much in Burlington Northern: "It is clear from [the Act's] language that in order to compare the actual assessment ratios, it is necessary to determine what the 'true market values' are." Ibid. We do not see how a court can go about determining true market value if it may not look behind the State's choice of valuation methods. Georgia insists there is a clear and important distinction between valuation methodologies and their application. As the State would have it, the statute allows courts to question only the latter. We find no distinction between method and application in the language of the Act, and see no passage limiting district court factfinding in the manner the State proposes. The total lack of textual support for Georgia's position is not surprising. The dichotomy the State presses would eviscerate the statute by forcing courts to defer to the valuation estimate of the State, when discriminatory taxation by States was the very evil the Act aimed to ban. Georgia's position is untenable given the way market value is calculated. Valuation is not a matter of mathematics, as if the district court could prevent discriminatory taxation simply by doublechecking the State's assessment equations. Rather, the calculation of true market value is an applied science, even a craft. Most appraisers estimate market value by employing not one methodology but a combination. These various methods generate a range of possible market values which the appraiser uses to derive what he considers to be an accurate estimate of market value, based on careful scrutiny of all the data available. Appraisal Institute, The Appraisal of Real Estate 49 (12th ed. 2001). Georgia's appraiser in the instant case, for example, used three different valuation techniques--the discounted cashflow approach, a market multiple approach, and a stock and debt approach. He derived five values from these three methods, ranging from $8.126 billion to $12.346 billion. After selecting a number at the low end of the range and then subtracting another $400 million to account for intangible property not subject to ad valorem taxation, he settled on $7.8 billion as his final estimate of the true market value. 472 F.3d, at 1284-1285. Appraisers typically employ a combination of methods because no one approach is entirely accurate, at least in the absence of an established market for the type of property at issue. The individual methods yield sometimes more, sometimes less reliable results depending on the peculiar features of the property evaluated. As the variation in the state appraiser's market-value range reveals, different methods can produce substantially different estimates. W. Kinnard, Income Property Valuation: Principles and Techniques of Appraising Income-Producing Real Estate 52 (1971). Given the extent to which the chosen methods can affect the determination of value, preventing courts from scrutinizing state valuation methodologies would render §11501 a largely empty command. It would force district courts to accept as "true" the market value estimated by the State, one of the parties to the litigation. States, in turn, would be free to employ appraisal techniques that routinely overestimate the market worth of railroad assets. By then levying taxes based on those overestimates, States could implement the very discriminatory taxation Congress sought to eradicate. On Georgia's reading of the statute, courts would be powerless to stop them, and the Act would ultimately guarantee railroads nothing more than mathematically accurate discriminatory taxation. We do not find this interpretation compelling. Instead, we agree with Judge Fay in dissent below: "Since the objective of any methodology is a determination of true market value, a railroad should be allowed to challenge the method[s] used [by the State] in an attempt to prove that the result ... was not the true market value of its property." 472 F.3d, at 1294. The State agrees that it may not be possible to fix true market value with any precision. But it draws a different conclusion from this premise. Because any number of estimates are plausible, Georgia argues, the court is as likely to get an accurate result by verifying the application of the State's methods--so long as they are broadly reasonable--as it is by employing another method altogether. The State warns that allowing railroads to introduce their own valuation estimates based on different methodologies will inevitably lead to a futile clash of experts, which courts will have no reasonable way to settle. At least one of the Courts of Appeals shares this concern. See Chesapeake Western, 938 F.2d, at 532 ("There is no absolute way to test the assertions of competing valuations . . ." (internal quotation marks and brackets omitted)). Congress was not similarly troubled. It directed courts to find true market value, however elusive. It made that value the objective benchmark for courts' evaluation of state taxes on railroad property. True market value may well not be a single, precise number, but Congress obviously believed it was susceptible to judicial inquiry and that some approximations were better than others. Georgia's grim prophecies notwithstanding, the inquiry the statute mandates is not unfamiliar to courts. Valuation of property, though admittedly complex, is at bottom just "an issue of fact about possible market prices," Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 741 (1997), an issue district courts are used to addressing. Railroad property is not frequently sold, but "determinations of market value are routinely made in judicial proceedings without the benefit of a market transaction." Id., at 742. The District Court in this case made clear that it knew how to find true market value: "In a more typical case, the court would look at both [the railroad expert's] appraisal and [the State's] appraisal to determine the true market value of [the railroad]." 448 F.Supp. 2d, at 1338, n.8. It refused to do so not because true market value is inherently elusive, but because it believed the Act did not allow it to question the State's methods. In light of the statute's directive making true market value a factual question to be determined by the district court, what Georgia is really asking for is a limitation on the types of evidence courts may consider as part of their factual inquiry. If Congress had wanted to impose such a limit by reserving to States the prerogative of selecting which valuation methods may be used, it surely could have done so. Out of deference to the States, for example, §11501(c) provides that "[t]he burden of proof in determining . . . true market value [shall be] governed by State law." Congress could easily have included similar language insulating the State's chosen methodologies from judicial scrutiny. It did not. Like Oklahoma's argument in Burlington Northern, Georgia's position in this case ultimately "depends upon the addition of words to a statutory provision which is complete as it stands." 481 U.S., at 463. We decline to find distinctions in the statute where they do not exist, especially where, as here, those distinctions would thwart the law's operation. III Considering the clarity of the statute, we are tempted to leave the discussion at that. "When we find the terms of a statue unambiguous, judicial inquiry is complete . . . ." Rubin v. United States, 449 U.S. 424, 430 (1981). Georgia, however, lodges two objections to our interpretation, each of which merits a reply. First, the State argues that any interpretation of the Act allowing courts to question state valuation methods ignores the background principles of federalism against which the statute was enacted. The majority below expressed a similar concern. "The selection of a valuation methodology," it ruled, "is part of th[e] fundamental power of a state [to tax]," 472 F.3d, at 1288, and should not be limited absent a clear statement from Congress. We have long held that the means States adopt to collect their taxes "should be interfered with as little as possible." Dows v. Chicago, 11 Wall. 108, 110 (1871). But we are persuaded that allowing railroads to challenge a State's valuation methodologies has been clearly authorized by the terms of the 4-R Act. As an initial matter, we question Georgia's contention that its selection of valuation methodologies is an important state policy choice intimately connected to its tax power. Georgia does not prescribe any particular methodology as a matter of state law. Its appraisers use different methodologies in different combinations, as they see fit. See 472 F.3d, at 1284-1285 (explaining that the state appraiser employed multiple methods and selected a value according to his best judgment). This suit, in fact, is the result of an individual appraiser's decision to employ a different combination of assessment techniques than that used by his immediate predecessors. The methods he selected were his choice, not the dictate of any state statute or regulation. Ibid. But even if important questions of state policy are, as the Eleventh Circuit believed, "intertwined with the selection of a valuation methodology," id., at 1288, judicial scrutiny of those methodologies is authorized by the 4-R Act's clear command to find true market value. As we explained above, the power to calculate true market value necessarily includes the power to look behind a State's valuation methods. That the statute should vest this authority in the Nation's courts is hardly surprising, given Congress's conclusion that the States were assessing railroad property unfairly. Our decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332 (1994), is not to the contrary. That case concerned a different provision of the 4-R Act--namely, the command in §11501(b)(4) preventing a State from "[i]mpos[ing] another tax that discriminates against a rail carrier providing transportation" in the taxing jurisdiction. This bar on facially discriminatory taxes, we held, did not prevent a State from exempting certain nonrailroad property from otherwise generally applicable ad valorem taxes. ACF Industries, 510 U.S., at 343. At the time the 4-R Act was adopted, a majority of States exempted one or more classes of business property from ad valorem taxation, "including business inventories, raw materials used in textile manufacturing, . . . and mechanics tools," to name just a few. Id., at 344. The States had provided such property tax exemptions for years. In the face of this widespread and historical practice, we declined to read the 4-R Act to prohibit a type of tax exemption the text did not expressly mention. Ibid. By contrast, we pointedly noted that the Act "prohibit[s] discriminatory tax rates and assessment ratios in no uncertain terms . . . and set[s] forth precise standards for judicial scrutiny of challenged rate and assessment practices." Id., at 343. Georgia's claim that court review of state valuation methodologies is not authorized by a clear statement in the Act ignores the statute's explicit prohibition of discriminatory assessment ratios. A district court cannot accurately calculate or compare those ratios without determining true market value. Congress clearly permitted courts to question state valuation methodologies when it banned discriminatory assessment ratios and made true market value a question to be litigated in federal court. Georgia also protests that our interpretation will destroy the States' discretion to choose their own valuation methodologies. We disagree. A State may use whatever method or methods it likes, so long as the result is not discriminatory. The Act does not prohibit the use of any valuation methodology. It prohibits discrimination. Far from requiring States to follow a particular method, we hold only that nothing in the statute prevents a railroad from attempting to show that the methods chosen by the State result in a discriminatory determination of true market value. The judgment of the Court of Appeals for the Eleventh Circuit is reversed. It is so ordered. FOOTNOTESFootnote 1The portion of the Act that concerns us here, Section 306, was originally codified at 49 U.S.C. §26c (1976 ed.). In 1978, Congress recodified it at 49 U.S.C. §11503 (1976 ed., Supp. II). Congress recodified it again in 1995, without substantive change, this time as §11501. For convenience, all references to the statute are to the text of §11501. Footnote 2Section 11501 reads, in relevant part: "(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: "(1) Assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property. "(2) Levy or collect a tax on an assessment that may not be made under paragraph (1) of this subsection. "(3) Levy or collect an advalorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. "(4) Impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Board under this part." Footnote 3Section 11501(c) provides: "Notwithstanding section 1341 of title 28 and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has jurisdiction, concurrent with other jurisdiction of courts of the United States and the States, to prevent a violation of subsection (b) of this section. Relief may be granted under this subsection only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent the ratio of assessed value to true market value of other commercial and industrial property in the same assessment jurisdiction. The burden of proof in determining assessed value and true market value is governed by State law. If the ratio of the assessed value of other commercial and industrial property in the assessment jurisdiction to the true market value of all other commercial and industrial property cannot be determined to the satisfaction of the district court through the random-sampling method known as a sales assessment ratio study (to be carried out under statistical principles applicable to such a study), the court shall find, as a violation of this section-- "(1) an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has to the true market value of all other commercial and industrial property; and "(2) the collection of an advalorem property tax on the rail transportation property at a tax rate that exceeds the tax ratio rate applicable to taxable property in the taxing district." Footnote 4Georgia assesses public utilities using the "unit rule." Under this rule, "an appraiser first determines the value of all assets of an entity, regardless of location," then multiplies "by the percentage of the entity located within [the State] to determine what portion of the value of the company should be allocated to the state." 472 F.3d 1281, 1283 (CA11 2006). The parties agree the unit rule is the appropriate rule for valuing CSX's property. There are, however, numerous methods available to value property under the unit rule, and many of these methods themselves have multiple variations. See id., at 1284.

conservative

public_entity

economic_activity

1979-044-01

United States Supreme Court TRAMMEL v. UNITED STATES(1980) No. 78-5705 Argued: Decided: February 27, 1980 Prior to his trial with others on federal drug charges, petitioner advised the District Court that the Government intended to call his wife (who had been named in the indictment as an unindicted co-conspirator) as an adverse witness and asserted a privilege to prevent her from testifying. The District Court ruled that confidential communications between petitioner and his wife were privileged and therefore inadmissible, but the wife was permitted to testify to any act she observed before or during the marriage and to any communication made in the presence of a third person. Primarily on the basis of his wife's testimony, petitioner was convicted, and the Court of Appeals affirmed, rejecting petitioner's contention that the admission of his wife's adverse testimony, over his objection, contravened the decision in Hawkins v. United States, 358 U.S. 74 , barring the testimony of one spouse against the other unless both consent. Held: The Court modifies the Hawkins rule so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Here, petitioner's spouse chose to testify against him; that she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary, and thus petitioner's claim of privilege was properly rejected. Pp. 43-53. (a) The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While this Court, in Hawkins, supra, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience.'" 358 U.S., at 79 . Pp. 43-46. (b) Rule 501 of the Federal Rules of Evidence acknowledges the federal courts' authority to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." P. 47. (c) Since 1958, when Hawkins was decided, the trend in state law [445 U.S. 40, 41] has been toward divesting the accused of the privilege to bar adverse spousal testimony. Pp. 48-50. (d) Information privately disclosed between husband and wife in the confidence of the marital relationship is privileged under the independent rule protecting confidential marital communications, Blau v. United States, 340 U.S. 332 ; and the Hawkins privilege, which sweeps more broadly than any other testimonial privilege, is not limited to confidential communications but is invoked to also exclude evidence of criminal acts and of communications in the presence of third persons. The ancient foundations for so sweeping a privilege - whereby a woman was regarded as a chattel and denied a separate legal identity - have long since disappeared, and the contemporary justification for affording an accused such a privilege is unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding - whatever the motivation - there is probably little in the way of marital harmony for the privilege to preserve. Consideration of the foundations for the privilege and its history thus shows that "reason and experience" no longer justify so sweeping a rule as that found acceptable in Hawkins. Pp. 50-53. 583 F.2d 1166, affirmed. BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 53. J. Terry Wiggins argued the cause for petitioner. With him on the brief was Frederick A. Fielder, Jr. Solicitor General McCree argued the cause for the United States. With him on the brief were Assistant Attorney General Heymann, Deputy Solicitor General Frey, Elinor Hadley Stillman, and Joel M. Gershowitz. * [Footnote * Briefs of amici curiae were filed by Frank E. Booker for the Michigan Bar Association Standing Committee on Civil Procedure; and by Mr. Booker for the Missouri Bar. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as [445 U.S. 40, 42] to exclude the voluntary testimony of his wife. 440 U.S. 934 (1979). This calls for a re-examination of Hawkins v. United States, 358 U.S. 74 (1958). I On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. 952 (a), 962 (a), and 963. The indictment also named six unindicted co-conspirators, including petitioner's wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. 1 She explained that her cooperation with the Government was based on assurances that she would be given [445 U.S. 40, 43] lenient treatment. 2 She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication "made in the presence of a third person"; however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. 5010 (b). 3 In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court's teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit "the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony." 583 F.2d 1166, 1168 (CA10 1978). II The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved [445 U.S. 40, 44] by the Justices that a wife cannot be produced either against or for her husband." 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223 (1839), in Graves v. United States, 150 U.S. 118 (1893), and again in Jin Fuey Moy v. United States, 254 U.S. 189, 195 (1920), where it was deemed so well established a proposition as to "hardly require[e] mention." Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371 , that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized. 4 [445 U.S. 40, 45] Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." 8 Wigmore 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore 2332 et seq. 5 These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence, advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and "abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action." See Rule 23 (2) and comments. Several state legislatures enacted similarly patterned provisions into law. 6 [445 U.S. 40, 46] In Hawkins v. United States, 358 U.S. 74 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife's testimony inadmissible; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, but chose not to abandon it. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, "that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences." Id., at 79. Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing "a rule which bars the testimony of one spouse against the other unless both consent." Id., at 78. Accord, Wyatt v. United States, 362 U.S. 525, 528 (1960). 7 However, in so doing, the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience.'" 358 U.S., at 79 . [445 U.S. 40, 47] III A The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." Fed. Rule Evid. 501. Cf. Wolfie v. United States, 291 U.S. 7, 12 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis," 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S. Rep. No. 93-1277, p. 11 (1974); H. R. Rep. No. 93-650, p. 8 (1973). 8 Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins [445 U.S. 40, 48] rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships - already subject to much erosion in our day - also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change. This was recognized in Funk where the Court "decline[d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist." 290 U.S., at 382 . For, as Mr. Justice Black admonished in another setting, "[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it." Francis v. Southern Pacific Co., 333 U.S. 445, 471 (1948) (dissenting opinion). B Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U.S., at 81 , n. 3 (STEWART, J., concurring). The number has now declined to 24. 9 In 1974, the National [445 U.S. 40, 49] Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma - each of which in 1958 permitted an accused to exclude adverse spousal testimony. 10 The trend in state law toward [445 U.S. 40, 50] divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U.S. 393, 404 (1975). Scholarly criticism of the Hawkins rule has also continued unabated. 11 C Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public . . . has a right to every man's evidence.'" United States v. Bryan, 339 U.S. 323, 331 (1950). As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683 , [445 U.S. 40, 51] 709-710 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship - once described by this Court as "the best solace of human existence." Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U.S. 332 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making "every man's house his castle," and permits a person [445 U.S. 40, 52] to convert his house into "a den of thieves." 5 Rationale of Judicial Evidence 340 (1827). It "secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime." Id., at 338. The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world - indeed in any modern society - is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14 -15 (1975). The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding - whatever the motivation - their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. 12 Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this, the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one [445 U.S. 40, 53] spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband's control over her testimony. IV Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience" no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification - vesting the privilege in the witness-spouse - furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is Affirmed. Footnotes [Footnote 1 In response to the question whether divorce was contemplated, Mrs. Trammel testified that her husband had said that "I would go my way and he would go his." App. 27. [Footnote 2 The Government represents to the Court that Elizabeth Trammel has not been prosecuted for her role in the conspiracy. [Footnote 3 Roberts and Freeman were also convicted. Roberts was sentenced to two years' imprisonment. Freeman received an indeterminate sentence under the Youth Corrections Act. [Footnote 4 See Brosman, Edward Livingston and Spousal Testimony in Louisiana, 11 Tulane L. Rev. 243 (1937); Hutchins & Slesinger, Some Observations [445 U.S. 40, 45] on the Law of Evidence: Family Relations, 13 Minn. L. Rev. 675 (1929); Note, 24 Calif. L. Rev. 472 (1936); Note, 35 Mich. L. Rev. 329 (1936); Note, 10 So. Cal. L. Rev. 94 (1936); Note, 20 Minn. L. Rev. 693 (1936); [Footnote 5 This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U.S. 7 (1934), and in Blau v. United States, 340 U.S. 332 (1951). In neither case, however, did the Court adopt the Wigmore view that the communications privilege be substituted in place of the privilege against adverse spousal testimony. The privilege as to confidential marital communications is not at issue in the instant case; accordingly, our holding today does not disturb Wolfle and Blau. [Footnote 6 See Note, Competency of One Spouse to Testify Against the Other in [445 U.S. 40, 46] Criminal Cases Where the Testimony Does Not Relate to Confidential Communications: Modern Trend, 38 Va. L. Rev. 359 (1952). [Footnote 7 The decision in Wyatt recognized an exception to Hawkins for cases in which one spouse commits a crime against the other. 362 U.S., at 526 . This exception, placed on the ground of necessity, was a longstanding one at common law. See Lord Audley's Case, 123 Eng. Rep. 1140 (1631); 8 Wigmore 2239. It has been expanded since then to include crimes against the spouse's property, see Herman v. United States, 220 F.2d 219, 226 (CA4 1955), and in recent years crimes against children of either spouse, United States v. Allery, 526 F.2d 1362 (CA8 1975). Similar exceptions have been found to the confidential marital communications privilege. See 8 Wigmore 2338. [Footnote 8 Petitioner's reliance on 28 U.S.C. 2076 for the proposition that this Court is without power to reconsider Hawkins is ill-founded. That provision limits this Court's statutory rulemaking authority by providing that rules "creating, abolishing, or modifying a privilege shall have no force or effect unless . . . approved by act of Congress." It was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise. In Rule 501 Congress makes clear that 2076 was not intended to prevent the federal courts from developing testimonial privilege law in federal criminal cases on a case-by-case basis "in light of reason and experience"; indeed Congress encouraged such development. [Footnote 9 Eight States provide that one spouse is incompetent to testify against the other in a criminal proceeding; see Haw. Rev. Stat. 621-18 (1976); Iowa Code 622.7 (1979); Miss. Code Ann. 13-1-5 (Supp. 1979); N.C. Gen. Stat. 8-57 (Supp. 1977); Ohio Rev. Code Ann. 2945.42 (Supp. 1979); Pa. Stat. Ann., Tit. 42, 5913, 5915 (Purdon Supp. 1979); Tex. Crim. Proc. Code Ann., Art. 38.11 (Vernon 1979); Wyo. Stat. 1-12-104 (1977). Sixteen States provide a privilege against adverse spousal testimony and vest the privilege in both spouses or in the defendant-spouse alone: see Alaska Crim. Proc. Rule 26 (b) (2); Colo. Rev. Stat. 13-90-107 (1973); Idaho Code 9-203 (Supp. 1979); Mich. Comp. Laws 600.2162 (1968); Minn. Stat. 595.02 (1978); Mo. Rev. Stat. 546.260 (1978); Mont. Code Ann. 46-16-212 (1979); Neb. Rev. Stat. 27-505 (1975); Nev. Rev. Stat. 49.295 (1977); N. J. Stat. Ann. 2A:84A-17 (West 1976); N. M. Stat. Ann. 20-4-505 (Supp. 1977); Ore. Rev. Stat. 44.040 [445 U.S. 40, 49] (1977); Utah Code Ann. 78-24-8 (1977); Va. Code 19.2-271.2 (Supp. 1979); Wash. Rev. Code 5.60.060 (Supp. 1979); W. Va. Code 57-3-3 (1966). Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala. Code 12-21-227 (1975); Cal. Evid. Code Ann. 970-973 (West 1966 and Supp. 1979); Conn. Gen. Stat. 54-84 (1979); Ga. Code 38-1604 (1978); Ky. Rev. Stat. 421.210 (Supp. 1978); La. Rev. Stat. Ann. 15:461 (West 1967); Md. Cts. & Jud. Proc. Code Ann. 9-101, 9-106 (1974); Mass. Gen. Laws Ann., ch. 233, 20 (West Supp. 1979); R. I. Gen. Laws 12-17-10 (1970). The remaining 17 States have abolished the privilege in criminal cases: see Ariz. Rev. Stat. Ann. 12-2231 (Supp. 1978); Ark. Stat. Ann. 28-101, Rules 501 and 504 (1979); Del. Code Ann., Tit. 11, 3502 (1975); Fla. Stat. 90.501, 90.504 (1979); Ill. Rev. Stat., ch. 38, 155-1 (1977); Ind. Code 34-1-14-4, 34-1-14-5 (1976); Kan. Stat. Ann. 60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N. H. Rev. Stat. Ann. 516.27 (1974); N. Y. Crim. Proc. Law 60.10 (McKinney 1971); N. Y. Civ. Proc. Law 4502, 4512 (McKinney 1963); N. D. Rules of Evidence 501, 504; Okla. Stat., Tit. 12, 2103, 2501, 2504 (West Supp. 1979); S. C. Code 19-11-30 (1976); S. D. Comp. Laws Ann. 19-13-1, 19-13-12 to 19-13-15 (1979); Tenn. Code Ann. 40-2404 (1975); Vt. Stat. Ann., Tit. 12, 1605 (1973); Wis. Stat. 905.01, 905.05 (1975). In 1901, Congress enacted a rule of evidence for the District of Columbia that made husband and wife "competent but not compellable to testify for or against each other," except as to confidential communications. This provision, which vests the privilege against adverse spousal testimony in the witness-spouse, remains in effect. See 31 Stat. 1358, 1068, 1069, recodified as D.C. Code 14-306 (1973). [Footnote 10 In 1965, California took the privilege from the defendant-spouse and vested it in the witness-spouse, accepting a study commission recommendation that the "latter [was] more likely than the former to determine whether or not to claim the privilege on the basis of the probable effect on the marital relationship." See Cal. Evid. Code Ann. 970-973 (West [445 U.S. 40, 50] 1966 and Supp. 1979) and 1 California Law Revision Commission, Recommendation and Study relating to The Marital "For and Against" Testimonial Privilege, at F-5 (1956). See also 6 California Law Revision Commission, Tentative Privileges Recommendation - Rule 27.5, pp. 243-244 (1964). Support for the common-law rule has also diminished in England. In 1972, a study group there proposed giving the privilege to the witness-spouse, on the ground that "if [the wife] is willing to give evidence . . . the law would be showing excessive concern for the preservation of marital harmony if it were to say that she must not do so." Criminal Law Revision Committee, Eleventh Report, Evidence (General) 93. [Footnote 11 See Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif. L. Rev. 1353, 1384-1385 (1973); Orfield, The Husband-Wife Privileges in Federal Criminal Procedure, 24 Ohio St. L. J. 144 (1963); Rothstein, A Re-evaluation of the Privilege Against Adverse Spousal Testimony in the Light of its Purpose, 12 Int'l and Comp. L. Q. 1189 (1963); Note, 1977 Ariz. St. L. J. 411; Comment, 17 St. Louis L. J. 107 (1972); Comment, 15 Wayne L. Rev. 1287, 1334-1337 (1969); Comment, 52 J. Crim. L. 74 (1961); Note, 56 Nw. U. L. Rev. 208 (1961); Note, 32 Temp. L. Q. 351 (1959); Note 33 Tulane L. Rev. 884 (1959). [Footnote 12 It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other's apprehension. It is only the spouse's testimony in the courtroom that is prohibited. MR. JUSTICE STEWART, concurring in the judgment. Although agreeing with much of what the Court has to say, I cannot join an opinion that implies that "reason and experience" have worked a vast change since the Hawkins case was decided in 1958. In that case the Court upheld the privilege of a defendant in a criminal case to prevent adverse spousal testimony, in an all-but-unanimous opinion by Mr. Justice Black. Today the Court, in another all-but-unanimous opinion, obliterates that privilege because of the purported [445 U.S. 40, 54] change in perception that "reason and experience" have wrought. The fact of the matter is that the Court in this case simply accepts the very same arguments that the Court rejected when the Government first made them in the Hawkins case in 1958. I thought those arguments were valid then, 1 and I think so now. The Court is correct when it says that "[t]he ancient foundations for so sweeping a privilege have long since disappeared." Ante, at 52. But those foundations had disappeared well before 1958; their disappearance certainly did not occur in the few years that have elapsed between the Hawkins decision and this one. To paraphrase what Mr. Justice Jackson once said in another context, there is reason to believe that today's opinion of the Court will be of greater interest to students of human psychology than to students of law. 2 [Footnote 1 "The rule of evidence we are here asked to re-examine has been called a `sentimental relic.' It was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him. "Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely `reason and experience' require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity." Hawkins v. United States, 358 U.S. 74, 81 -82 (concurring opinion) (citations and footnotes omitted). [Footnote 2 See Zorach v. Clauson, 343 U.S. 306, 325 (dissenting opinion). [445 U.S. 40, 55]

conservative

public_entity

judicial_power

1975-013-01

United States Supreme Court BRAY v. UNITED STATES(1975) No. 75-5182 Argued: Decided: December 1, 1975 Petitioner's conviction of criminal contempt under 18 U.S.C. 401 for refusing to testify and to produce business records subpoenaed by the Internal Revenue Service in connection with an inquiry into possible violations of the Economic Stabilization Act of 1970 (Act) was a final decision of the District Court appealable to the Court of Appeals, and petitioner's appeal was not within the exclusive jurisdiction of the Temporary Emergency Court of Appeals (TECA). Rather than "arising under" the Act within the meaning of 211 (b) (2) thereof vesting the TECA with exclusive jurisdiction of all appeals from district courts "in cases and controversies arising under" the Act, the criminal contempt charge initiated a separate and independent proceeding under the Criminal Code, which, although related to an order entered in connection with an investigation of Act violations, did not depend on the existence of such violations or even the continuance of the investigation. Certiorari granted; - F.2d -, vacated and remanded. PER CURIAM. On June 25, 1973, the Internal Revenue Service (IRS) served a subpoena on the petitioner, Karl J. Bray, directing him to produce business records for examination and to appear for questioning in connection with an inquiry into possible violations of the Economic Stabilization Act of 1970, 84 Stat. 799, as amended, 85 Stat. 743, note following 12 U.S.C. 1904 (1970 ed., Supp. III). When he failed to comply, the IRS filed a petition for enforcement of the subpoena in the United States District Court for the District of Utah. Following a hearing, the District Court ordered him to comply with the subpoena. Upon his refusal to testify or produce [423 U.S. 73, 74] the records, the court directed him to show cause why he should not be held in criminal contempt. He was subsequently convicted of criminal contempt under 18 U.S.C. 401 and sentenced to imprisonment for 60 days. 1 He appealed the judgment of conviction to the United States Court of Appeals for the Tenth Circuit, but that court dismissed the appeal for want of jurisdiction, holding that the appeal came within the exclusive jurisdiction conferred upon the Temporary Emergency Court of Appeals (TECA) by 211 (b) (2) of the Economic Stabilization Act. This petition for certiorari asks us to review the propriety of the dismissal of Bray's appeal. As part of the Economic Stabilization Act Amendments of 1971, Congress created the TECA and vested it with "exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder." 211 (b) (2), 85 Stat. 749. This judicial-review provision was designed to provide speedy resolution of cases brought under the Act and "to funnel into one court all the appeals arising out of the District Courts and thus gain in consistency of decision." S. Rep. No. 92-507, p. 10 (1971). The provision thus carved out a limited exception to the broad jurisdiction of the courts of appeals over "appeals from all final decisions of the district courts of the United States." 28 U.S.C. 1291. The Tenth Circuit held that, "notwithstanding Bray's prosecution under 18 U.S.C. [] 401," the contempt charge did not "change the substantive nature of the original enforcement proceedings" and therefore remained "a `case or controversy' arising under the [Economic [423 U.S. 73, 75] Stabilization] Act." This was, we think, a misreading of both the language and the purpose of the stabilization statute. The Act does not contain any provision prohibiting the violation of a district court's enforcement order or establishing penalties for such a violation. Thus, rather than "arising under" any provision of the Act, the contempt prosecution was commenced under 18 U.S.C. 401, the provision of the Criminal Code that empowers federal courts to punish certain contempt of their authority. Nothing in the Act or in its legislative history indicates that Congress intended "to include existing offenses, already covered under Title 18, under the umbrella of the Stabilization Act." United States v. Cooper, 482 F.2d 1393, 1398 (TECA 1973). 2 Review in the TECA of criminal contempt convictions relating to compliance investigations or enforcement efforts is not necessary to assure uniform interpretation of the substantive provisions of the stabilization scheme. Indeed, a requirement of such review would only serve to undermine the prompt resolution of Stabilization Act questions by burdening the TECA with additional appeals. The charge brought against the petitioner based on his refusal to obey a lawful order of the District Court initiated "a separate and independent proceeding at law for criminal contempt, to vindicate the authority of the court" and was "not a part of the original cause." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 , 451. Although the contempt charge related to an order [423 U.S. 73, 76] entered in connection with an investigation of Stabilization Act violations, it was not dependent on the existence of such violations or even the continuation of the investigation. As the Court noted in United States v. United Mine Workers, 330 U.S. 258, 294 : "Violations of an order are punishable as criminal contempt even though the order is set aside on appeal, Worden v. Searls, 121 U.S. 14 (1887), or though the basic action has become moot, Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911)." Here the conviction and sentencing of the petitioner for criminal contempt constituted a final decision of the District Court that was then appealable to the appropriate court of appeals. We therefore grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgment, and remand the case to the Court of Appeals for the Tenth Circuit for further proceedings consistent with this opinion. Footnotes [Footnote 1 The District Court stayed execution of the judgment pending appeal. [Footnote 2 In Cooper, the TECA held that a prosecution under 18 U.S.C. 1001 for willfully and knowingly making false representations to an IRS agent in connection with a Stabilization Act investigation was not "a controversy `arising under' any title of the Stabilization Act or under regulations or orders issued thereunder." 482 F.2d, at 1397. [423 U.S. 73, 77]

liberal

public_entity

judicial_power

1981-159-05

United States Supreme Court GENERAL BUILDING CONTRACTORS ASSN. v. PA.(1982) No. 81-280 Argued: March 3, 1982Decided: June 29, 1982 Respondents - the Commonwealth of Pennsylvania and several black individuals representing a class of racial minorities who are skilled or seek work as operating engineers in the construction industry in Eastern Pennsylvania and Delaware - brought an action in Federal District Court under 42 U.S.C. 1981, seeking to redress alleged racial discrimination in the operation of an exclusive hiring hall established in collective-bargaining contracts between the local union representing operating engineers and petitioner trade associations and construction industry employers. Respondents also alleged discrimination in the operation of an apprenticeship program established by the union and the trade associations and administered by the Joint Apprenticeship and Training Committee (JATC), half of whose members are appointed by the union and half by the trade associations. Named as defendants were the union and petitioners. The District Court found that although the hiring hall system was neutral on its face, the union in administering the system practiced a pattern of intentional discrimination, and the court also found similar discrimination in the JATC's administration of the apprenticeship program. On the basis of these findings, the court held that the union and the JATC had violated 1981, and that, although petitioners as a class did not intentionally discriminate against minority workers and were not aware of the union's discriminatory practices, they were nevertheless liable under 1981 for the purpose of imposing an injunctive remedy. The court reasoned that liability under 1981 requires no proof of purposeful conduct on any of the defendants' part, but it was sufficient that the employers delegated the hiring procedure to the union and that the union, in effectuating this delegation, intentionally discriminated or, [458 U.S. 375, 376] alternatively, produced a discriminatory impact. The court concluded that respondents had shown the requisite relationship among the employers, trade associations, and union to render applicable the theory of respondeat superior, thus making petitioners liable for the union's discriminatory acts. The Court of Appeals affirmed. Held: 1. Liability may not be imposed under 1981 without proof of intentional discrimination. This conclusion is supported by the legislative history. The fact that the prohibitions of 1981 encompass private as well as governmental action does not suggest that the statute reaches more than purposeful discrimination, whether public or private. Pp. 382-391. 2. The District Court was unable to find discriminatory intent on petitioners' part, and liability under 1981 cannot be vicariously imposed on them based on the discriminatory conduct of the union or the JATC. Pp. 391-397. (a) There is no basis for holding petitioners liable under the doctrine of respondeat superior. The union, in operating the hiring hall, performed no function as the agent or servant of petitioner trade associations. Nor can the relationship between petitioner employers and the union be characterized as one between principal and agent without proof of a right to control the union's activities. Such a conception is alien to the fundamental assumption upon which the federal labor laws are structured and was not established by the evidence on which the District Court relied. And there is no evidence that an agency relationship existed between petitioners and the JATC. The fact that the employers fund the JATC does not render the JATC the employers' servant or agent, nor does the fact that the trade associations appoint half of the JATC's members infer a right of the associations to control the JATC. Pp. 391-395. (b) Nor is there any basis for holding petitioners liable on the ground that 1981 imposes a "nondelegable duty" on them to see that discrimination does not occur in the selection of their work force. Section 1981 does no more than prohibit petitioners from intentionally depriving black workers of the rights enumerated in the statute, including the equal right to contract, and was not intended to make them guarantors of the workers' rights against third parties who would infringe them. Pp. 395-397. 3. The District Court had no inherent power under its traditional equitable authority to allocate to petitioners a portion of the costs of the remedial decree, absent a supportable finding of liability upon petitioners' part. Nor does the All Writs Act constitute an independent basis for the injunctive portions of the District Court's order running against petitioners. There was no need to treat petitioners as strangers [458 U.S. 375, 377] to the suit and therefore to rely upon some extraordinary form of procedure or writ to bring them before the court, since they were named as defendants and litigated the issue of injunctive liability. Pp. 397-402. 648 F.2d 923, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined, and in Parts III and IV of which STEVENS, J., joined. O'CONNOR, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 403. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 405. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 407. [Footnote * Together with No. 81-330, United Engineers & Constructors, Inc. v. Pennsylvania et al.; No. 81-331, Contractors Association of Eastern Pennsylvania et al. v. Pennsylvania et al.; No. 81-332, Glasgow, Inc. v. Pennsylvania et al.; and No. 81-333, Bechtel Power Corp. v. Pennsylvania et al., also on certiorari to the same court. John J. McAleese, Jr., argued the cause for petitioners in Nos. 81-330, 81-331, 81-332, and 81-333. With him on the briefs for petitioners in Nos. 81-331 and 81-332 was Thomas J. McGoldrick. Bernard G. Segal, Martin Wald, and Nicholas N. Price filed briefs for petitioner in No. 81-330. Robert W. Kopp and David M. Pellow filed briefs for petitioner in No. 81-333. John G. Kester argued the cause for petitioner in No. 81-280. With him on the briefs was John J. Buckley, Jr. Harold I. Goodman argued the cause for respondents in all cases. With him on the brief for individual and class respondents were Jonathan M. Stein and Robert J. Reinstein. LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Joel M. Ressler, Louis J. Rovelli, and Margaret Hunting, Assistant Attorneys General, filed a brief for respondent Commonwealth of Pennsylvania. Kenneth I. Jonson filed a brief for respondent Local 542, International Union of Operating Engineers.Fn Fn [458 U.S. 375, 377] Briefs of amici curiae urging reversal were filed by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby for the Equal Employment Advisory Council; by Anthony J. Obadal and Alan D. Cirker for the National Constructors Association; and by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calio for the Washington Legal Foundation. Thomas I. Atkins and Michael H. Sussman filed a brief for the National Association for the Advancement of Colored People as amicus curiae urging affirmance. [458 U.S. 375, 378] JUSTICE REHNQUIST delivered the opinion of the Court. Respondents, the Commonwealth of Pennsylvania and the representatives of a class of racial minorities who are skilled or seek work as operating engineers in the construction industry in Eastern Pennsylvania and Delaware, commenced this action under a variety of federal statutes protecting civil rights, including 42 U.S.C. 1981. The complaint sought to redress racial discrimination in the operation of an exclusive hiring hall established in contracts between Local 542 of the International Union of Operating Engineers and construction industry employers doing business within the Union's jurisdiction. Respondents also alleged discrimination in the operation of an apprenticeship program established by Local 542 and several construction trade associations. Named as defendants were Local 542, the trade associations, the organization charged with administering the trade's apprenticeship program, and a class of approximately 1,400 construction industry employers. Petitioners, the defendant contractors and trade associations, seek review of a judgment granting an injunction against them. The questions we resolve are whether liability under 42 U.S.C. 1981 requires proof of discriminatory intent and whether, absent such proof, liability can nevertheless be imposed vicariously on the employers and trade associations for the discriminatory conduct of the Union. I The hiring hall system that is the focus of this litigation originated in a collective-bargaining agreement negotiated in 1961 by Local 542 and four construction trade associations in the Philadelphia area, three of whom are petitioners in this Court. 1 The agreement was concluded only after a 10-week strike prompted by the resistance of the trade associations to [458 U.S. 375, 379] the Union's demand for an exclusive hiring hall. 2 Under the terms of the agreement, the Union was to maintain lists of operating engineers, or would-be engineers, classified according to the extent of their recent construction experience. Signatory employers were contractually obligated to hire operating engineers only from among those referred by the Union from its current lists. Workers affiliated with the Union were barred from seeking work with those employers except through Union referrals. Thus, the collective-bargaining agreement effectively channeled all employment opportunities through the hiring hall. Since 1961 this requirement has been a constant feature of contracts negotiated with Local 542 by the trade associations, as well as of contracts signed with the Union by employers who were not represented by one of those associations in collective bargaining. 3 Among the means of gaining access to the Union's referral lists is an apprenticeship program established in 1965 by Local 542 and the trade associations. The program, which involves classroom and field training, is administered by the Joint Apprenticeship and Training Committee (JATC), a body of trustees half of whom are appointed by the Union and half by the trade associations. While enrolled in the program, apprentices are referred by the Union for unskilled construction work. Graduates of the program become journeymen operating engineers and are referred for heavy equipment jobs. [458 U.S. 375, 380] This action was filed in 1971 by the Commonwealth of Pennsylvania and 12 black plaintiffs representing a proposed class of minority group members residing within the jurisdiction of Local 542. The complaint charged that the Union and the JATC had violated numerous state and federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq. (1976 ed. and Supp. IV), and 42 U.S.C. 1981. The complaint alleged that these defendants had engaged in a pattern and practice of racial discrimination, by systematically denying access to the Union's referral lists, and by arbitrarily skewing referrals in favor of white workers, limiting most minority workers who did gain access to the hiring hall to jobs of short hours and low pay. The contractor employers and trade associations were also named as defendants, although the complaint did not allege a Title VII cause of action against them. 4 The District Court divided the trial into two stages. See Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 469 F. Supp. 329, 348 (ED Pa. 1978). The first stage, from which petitioners appeal, addressed issues of liability; assessment of damages was deferred to a second stage. For purposes of the first phase of the proceedings, the court certified a plaintiff class of minority operating engineers and would-be engineers, as well as a defendant class consisting of all trade associations and employers who had been parties to labor contracts with Local 542. A single employer, petitioner Glasgow, Inc., was certified to represent the defendant subclass of approximately 1,400 contractor employers. 5 [458 U.S. 375, 381] The District Court's opinion in the liability phase of the trial is lengthy. For our purposes, however, the relevant findings and conclusions can be summarized briefly. First, the court found that the hiring hall system established by collective bargaining was neutral on its face. Id., at 342. Indeed, after May 1, 1971, the contracts contained a provision expressly prohibiting employment discrimination on the basis of race, religion, color, or national origin. Id., at 340, and n. 6. But the court found that Local 542, in administering the system, "practiced a pattern of intentional discrimination and that union practices in the overall operation of a hiring hall for operating engineers created substantial racial disparities." Id., at 370. The court made similar findings regarding the JATC's administration of the job-training program. Id., at 384. On the basis of these findings, the District Court held that Local 542 and the JATC had violated Title VII, both because they intentionally discriminated and because they enforced practices that resulted in a disparate racial impact. Id., at 397-399. 6 The court also interpreted 42 U.S.C. 1981 to permit imposition of liability "on roughly the same basis as a Title VII claim," 469 F. Supp., at 401, and therefore concluded that the Union and the JATC had also violated 1981. Id., at 399-401. Turning to petitioners' liability under 1981, the court found that the plaintiffs had failed to prove "that the associations or contractors viewed simply as a class were actually aware of the union discrimination," id., at 401, and had failed to show "intent to discriminate by the employers as a class," id., at 412. Nevertheless, the court held the employers and the associations liable under 1981 for the purpose of imposing [458 U.S. 375, 382] an injunctive remedy "as a result of their contractual relationship to and use of a hiring hall system which in practice effectuated intentional discrimination, whether or not the employers and associations knew or should have known [of the Union's conduct]." Id., at 401. The court reasoned that liability under 1981 "requires no proof of purposeful conduct on the part of any of the defendants." Id., at 407. Instead, it was sufficient that "(1) the employers delegated an important aspect of their hiring procedure to the union; [and that] (2) the union, in effectuating the delegation, intentionally discriminated or, alternatively, produced a discriminatory impact." Id., at 412. "[P]laintiffs have shown that the requisite relationship exists among employers, associations, and union to render applicable the theory of respondeat superior, thus making employers and associations liable injunctively for the discriminatory acts of the union." Id., at 413. 7 Following an appeal authorized by 28 U.S.C. 1292(b), the Court of Appeals for the Third Circuit, sitting en banc, affirmed the judgment of liability against petitioners by an equally divided vote. 648 F.2d 923 (1981). We granted certiorari, 454 U.S. 939 (1981), and we now reverse. II The District Court held that petitioners had violated 42 U.S.C. 1981 notwithstanding its finding that, as a class, [458 U.S. 375, 383] petitioners did not intentionally discriminate against minority workers and neither knew nor had reason to know of the Union's discriminatory practices. The first question we address, therefore, is whether liability may be imposed under 1981 without proof of intentional discrimination. 8 Title 42 U.S.C. 1981 provides: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens; and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." We have traced the evolution of this statute and its companion, [458 U.S. 375, 384] 42 U.S.C. 1982, 9 on more than one occasion, see, e. g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 -296 (1976); Runyon v. McCrary, 427 U.S. 160, 168 -170 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422 -437 (1968), and we will not repeat the narrative again except in broad outline. The operative language of both laws apparently originated in 1 of the Civil Rights Act of 1866, 14 Stat. 27, enacted by Congress shortly after ratification of the Thirteenth Amendment. 10 "The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality." Georgia v. Rachel, 384 U.S. 780, 791 (1966). The same Congress also passed the Joint Resolution that was later adopted as the Fourteenth Amendment. See Cong. Globe, 39th Cong., 1st Sess., 3148-3149, 3042 (1866). As we explained in Hurd v. Hodge, 334 U.S. 24, 32 -33 (1948) (footnotes omitted): "Frequent references to the Civil Rights Act are to be found in the record of the legislative debates on the adoption of the Amendment. It is clear that in many significant respects the statute and the Amendment [458 U.S. 375, 385] were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land. Others supported the adoption of the Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States." Following ratification of the Fourteenth Amendment, Congress passed what has come to be known as the Enforcement Act of 1870, 16 Stat. 140, pursuant to the power conferred by 5 of the Amendment. Section 16 of that Act contains essentially the language that now appears in 1981. 11 Indeed, the present codification is derived from 1977 of the Revised Statutes of 1874, which in turn codified verbatim 16 of the 1870 Act. Section 16 differed from 1 of the 1866 Act in at least two respects. First, where 1 of the 1866 Act extended its guarantees to "citizens, of every race and color," 16 of the 1870 Act - and 1981 - protects "all persons." See United States v. Wong Kim Ark, 169 U.S. 649, 675 [458 U.S. 375, 386] (1898). Second, the 1870 Act omitted language contained in the 1866 Act, and eventually codified as 1982, guaranteeing property rights equivalent to those enjoyed by white citizens. Thus, "[a]lthough the 1866 Act rested only on the Thirteenth Amendment . . . and, indeed, was enacted before the Fourteenth Amendment was formally proposed, . . . the 1870 Act was passed pursuant to the Fourteenth, and changes in wording may have reflected the language of the Fourteenth Amendment." Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439 -440, n. 11 (1973). See Runyon v. McCrary, supra, at 168-170, n. 8. In determining whether 1981 reaches practices that merely result in a disproportionate impact on a particular class, or instead is limited to conduct motivated by a discriminatory purpose, we must be mindful of the "events and passions of the time" in which the law was forged. United States v. Price, 383 U.S. 787, 803 (1966). The Civil War had ended in April 1865. The First Session of the Thirty-ninth Congress met on December 4, 1865, some six months after the preceding Congress had sent to the States the Thirteenth Amendment and just two weeks before the Secretary of State certified the Amendment's ratification. On January 5, 1866, Senator Trumbull introduced the bill that would become the 1866 Act. 12 The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen. 13 Most of these laws [458 U.S. 375, 387] embodied express racial classifications and although others, such as those penalizing vagrancy, were facially neutral, Congress plainly perceived all of them as consciously conceived methods of resurrecting the incidents of slavery. 14 Senator Trumbull summarized the paramount aims of his bill: "Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the [Thirteenth] amendment." Cong. Globe, 39th Cong., 1st Sess., 474 (1866). Senator Trumbull emphasized: "This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man." Id., at 476 (emphasis in original). Of course, this Court has found in the legislative history of the 1866 Act evidence that Congress sought to accomplish more than the destruction of state-imposed civil disabilities and discriminatory punishments. We have held that both 1981 and 1982 "prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein." Jones v. Alfred H. Mayer Co., 392 U.S., at 436 . See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459 -460 (1975); Runyon v. McCrary, 427 U.S., at 168 . Nevertheless, the fact that the prohibitions of 1981 [458 U.S. 375, 388] encompass private as well as governmental action does not suggest that the statute reaches more than purposeful discrimination, whether public or private. Indeed, the relevant opinions are hostile to such an implication. Thus, although we held in Jones, supra, that 1982 reaches private action, we explained that 1 of the 1866 Act "was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute." 392 U.S., at 426 (emphasis on "racially motivated" added). Similarly, in Runyon v. McCrary, supra, we stated that 1981 would be violated "if a private offeror refuses to extend to a Negro, solely because he is a Negro, the same opportunity to enter into contracts as he extends to white offerees." 427 U.S., at 170 -171. The immediate evils with which the Thirty-ninth Congress was concerned simply did not include practices that were "neutral on their face, and even neutral in terms of intent," Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971), but that had the incidental effect of disadvantaging blacks to a greater degree than whites. Congress instead acted to protect the freedmen from intentional discrimination by those whose object was "to make their former slaves dependent serfs, victims of unjust laws, and debarred from all progress and elevation by organized social prejudices." Cong. Globe, 39th Cong., 1st Sess., 1839 (1866) (Rep. Clarke). See Memphis v. Greene, 451 U.S. 100, 131 -135 (1981) (WHITE, J., concurring in judgment). The supporters of the bill repeatedly emphasized that the legislation was designed to eradicate blatant deprivations of civil rights, clearly fashioned with the purpose of oppressing the former slaves. To infer that Congress sought to accomplish more than this would require stronger evidence in the legislative record than we have been able to discern. 15 [458 U.S. 375, 389] Our conclusion that 1981 reaches only purposeful discrimination is supported by one final observation about its legislative history. As noted earlier, the origins of the law can be traced to both the Civil Rights Act of 1866 and the Enforcement Act of 1870. Both of these laws, in turn, were legislative cousins of the Fourteenth Amendment. The 1866 Act represented Congress' first attempt to ensure equal rights for the freedmen following the formal abolition of slavery effected by the Thirteenth Amendment. As such, it constituted an initial blueprint of the Fourteenth Amendment, which Congress proposed in part as a means of "incorporat[ing] the guaranties of the Civil Rights Act of 1866 in the organic law of the land." Hurd v. Hodge, 334 U.S., at 32 . 16 The 1870 Act, which contained the language that now appears in 1981, was enacted as a means of enforcing the recently ratified Fourteenth Amendment. In light of the close [458 U.S. 375, 390] connection between these Acts and the Amendment, it would be incongruous to construe the principal object of their successor, 1981, in a manner markedly different from that of the Amendment itself. 17 With respect to the latter, "official action will not be held unconstitutional solely because it results in a racially disproportionate impact," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 -265 (1977). "[E]ven if a neutral law has a disproportionately adverse impact upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979). See Washington v. Davis, 426 U.S. 229 (1976). The same Congress that proposed the Fourteenth Amendment also passed the Civil [458 U.S. 375, 391] Rights Act of 1866, and the ratification of that Amendment paved the way for the Enforcement Act of 1870. These measures were all products of the same milieu and were directed against the same evils. Although Congress might have charted a different course in enacting the predecessors to 1981 than it did in proposing the Fourteenth Amendment, we have found no convincing evidence that it did so. We conclude, therefore, that 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination. III The District Court held petitioners liable under 1981 notwithstanding its finding that the plaintiffs had failed to prove intent to discriminate on the part of the employers and associations as a class. In light of our holding that 1981 can be violated only by intentional discrimination, the District Court's judgment can stand only if liability under 1981 can properly rest on some ground other than the discriminatory motivation of the petitioners themselves. Both the District Court and respondents have relied on such grounds, but we find them unconvincing. A The District Court reasoned that liability could be vicariously imposed upon the employers and associations, based upon the intentional discrimination practiced by Local 542 in its operation of the hiring hall. The court's theory was that petitioners had delegated to the "union hiring hall" the authority to select workers as "the agent for two principals - the union and the contractors, with their respective associations." 469 F. Supp., at 411. Since the hiring hall came into existence only through the agreement of petitioners, and since the exclusive hiring hall was the means by which "the intentional discrimination of the union was able to work its way broadly into the common workforce of operating engineers," id., at 412, the court concluded that "[t]he acts of the union therefore justify imposition of responsibility upon [458 U.S. 375, 392] those employers participating in the original delegation," ibid. The effect of this holding, as the court recognized, was to impose a "duty to see that discrimination does not take place in the selection of one's workforce," regardless of where the discrimination originates. Ibid. As applied to the petitioner associations, the District Court's theory is flawed on its own terms. The doctrine of respondeat superior, as traditionally conceived and as understood by the District Court, see id., at 411, enables the imposition of liability on a principal for the tortious acts of his agent and, in the more common case, on the master for the wrongful acts of his servant. See Restatement (Second) of Agency 215-216, 219 (1958) (Restatement); W. Prosser, Law of Torts 69-70 (4th ed. 1971) (Prosser); W. Seavey, Law of Agency 83 (1964) (Seavey). "Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement 1. A master-servant relationship is a form of agency in which the master employs the servant as "an agent to perform service in his affairs" and "controls or has the right to control the physical conduct of the other in the performance of the service." Id., 2. See 2 F. Harper & F. James, Law of Torts 26.6 (1956) (Harper & James). Local 542, in its operation of the hiring hall, simply performed no function as the agent or servant of the associations. The record demonstrates that the associations themselves do not hire operating engineers, and never have. Their primary purpose is to represent certain employers in contract negotiations with the Union. Even if the doctrine of respondeat superior were broadly applicable to suits based on 1981, therefore, it would not support the imposition of liability on a defendant based on the acts of a party with whom it had no agency or employment relationship. 18 [458 U.S. 375, 393] We have similar difficulty in accepting the application of traditional respondeat superior doctrine to the class of contractor employers. In the run of cases, the relationship between an employer and the union that represents its employees simply cannot be accurately characterized as one between principal and agent or master and servant. Indeed, such a conception is alien to the fundamental assumptions upon which the federal labor laws are structured. At the core of agency is a "fiduciary relation" arising from the "consent by one person to another that the other shall act on his behalf and subject to his control." Restatement 1. Equally central to the master-servant relation is the master's control over or right to control the physical activities of the servant. See id., 220; 2 Harper & James 26.3; Seavey 84, p. 142. See also Logue v. United States, 412 U.S. 521, 527 (1973). The District Court found that the requirement of control was satisfied because "the employers retained power to oppose the union discrimination." 469 F. Supp., at 411, n. 61. However, the "power to oppose" the Union, even when the opposition is grounded in the terms of the collective-bargaining agreement, is not tantamount to a "right to control" the Union. See Lummus Co. v. NLRB, 119 U.S. App. D.C. 229, 236, 339 F.2d 728, 735 (1964). 19 [458 U.S. 375, 394] Indeed, a rule equating the two would convert every contractual relationship into an agency relationship, a result clearly unsupported by the common-law doctrines on which the District Court relied. The District Court's assumptions about the relation between the Union and the class of employers with whom it has contracted also runs counter to the premises on which the federal labor laws have been constructed. While authorizing collective bargaining and providing means of enforcing the resultant contracts, the National Labor Relations Act expressly prohibits employers from compromising the independence of labor unions. See 49 Stat. 452, as amended, 29 U.S.C. 158(a); 61 Stat. 157, as amended, 29 U.S.C. 186. The entire process of collective bargaining is structured and regulated on the assumption that "[t]he parties - even granting the modification of views that may come from a realization of economic interdependence - still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest." NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960). See Vaca v. Sipes, 386 U.S. 171, 177 (1967). We have no reason to doubt the validity of that assumption in the instant case. Respondents also suggest that petitioners can be held vicariously liable for the discriminatory conduct of the JATC. They argue that the JATC is properly viewed as an agent of both Local 542 and the associations, emphasizing that half of the trustees charged with administering the JATC are appointed by the associations and that the JATC is wholly funded by mandatory contributions from the employers. We note initially that the District Court premised petitioners' liability not on the actions of the JATC, but on the discriminatory conduct of the Union. See 469 F. Supp., at 411-413. The record, therefore, contains no findings regarding the relationship between the JATC and petitioners, beyond those noted above, that might support application of respondeat superior. [458 U.S. 375, 395] The facts emphasized by respondents, standing alone, are inadequate. That the employers fund the activities of the JATC does not render the JATC the employers' servant or agent any more than an independent contractor is rendered an agent simply because he is compensated by the principal for his services. The employers must also enjoy a right to control the activities of the JATC, and there is no record basis for believing that to be the case. Neither is a right of control inferable merely from the power of the associations to appoint half of the JATC's trustees. It is entirely possible that the trustees, once appointed, owe a fiduciary duty to the JATC and the apprentices enrolled in its programs, rather than to the entities that appointed them. Cf. NLRB v. Amax Coal Co., 453 U.S. 322 (1981). On the assumption that respondeat superior applies to suits based on 1981, there is no basis for holding either the employers or the associations liable under that doctrine without evidence that an agency relationship existed at the time the JATC committed the acts on which its own liability was premised. B The District Court also justified its result by concluding that 1981 imposes a "nondelegable duty" on petitioners "to see that discrimination does not take place in the selection of [their] workforce." 469 F. Supp., at 412. 20 The concept of a nondelegable duty imposes upon the principal not merely an obligation to exercise care in his own activities, but to answer for the well-being of those persons to whom the duty runs. See Restatement 214. The duty is not discharged by using care in delegating it to an independent contractor. Consequently, [458 U.S. 375, 396] the doctrine creates an exception to the common-law rule that a principal normally will not be liable for the tortious conduct of an independent contractor. See 2 Harper & James 26.11, pp. 1405-1408; Prosser 70, p. 467, 71, p. 470. So understood, a nondelegable duty is an affirmative obligation to ensure the protection of the person to whom the duty runs. In a sense, to characterize such a duty as "nondelegable" is merely to restate the duty. Thus, in this litigation the question is not whether the employers and associations are free to delegate their duty to abide by 1981, for whatever duty the statute imposes, they are bound to adhere to it. The question is what duty does 1981 impose. More precisely, does 1981 impose a duty to refrain from intentionally denying blacks the right to contract on the same basis as whites or does it impose an affirmative obligation to ensure that blacks enjoy such a right? The language of the statute does not speak in terms of duties. It merely declares specific rights held by "[a]ll persons within the jurisdiction of the United States." We are confident that the Thirty-ninth Congress meant to do no more than prohibit the employers and associations in these cases from intentionally depriving black workers of the rights enumerated in the statute, including the equal right to contract. It did not intend to make them the guarantors of the workers' rights as against third parties who would infringe them. Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 -578 (1978) (Title VII); Rizzo v. Goode, 423 U.S. 362, 376 -377 (1976) (42 U.S.C. 1983). Our earlier holding that 1981 reaches only intentional discrimination virtually compels this conclusion. It would be anomalous to hold that 1981 could be violated only by intentional discrimination and then to find this requirement satisfied by proof that the individual plaintiffs did not enjoy "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens" and that the defendants merely failed to ensure that the plaintiffs enjoyed employment opportunities [458 U.S. 375, 397] equivalent to that of whites. Such a result would be particularly inappropriate in the case of the associations, who are not engaged in the construction business, do not employ operating engineers, and consequently did not delegate to the Union any hiring functions which they otherwise would have performed themselves. Neither the District Court nor respondents identify anything in the language or legislative history of the statute to support a contrary conclusion. 21 IV In a separate portion of their brief, respondents urge several independent bases for the issuance of an injunction against the petitioners and the allocation to them of a portion of the costs of the remedial decree. Respondents first assert that the court had inherent equitable power to allocate remedial costs among all the named defendants. They also rely on the All Writs Act, 28 U.S.C. 1651(a), as an independent basis for the injunctive portions of the District Court's order [458 U.S. 375, 398] running against petitioners. We shall deal with these contentions in turn. The District Court in an opinion issued after judgment set forth the basis for its holding that "defendants held injunctively liable solely under a theory of vicarious responsibility are nevertheless liable for `a share' of the costs under Rule 54(d)." Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 507 F. Supp. 1146, 1152 (1980). The District Court framed the inquiry before it as whether a party held vicariously liable to an injunction, but not for damages, might nonetheless have a proportionate share of the costs assessed against it. While this may have been an entirely appropriate frame of reference for the District Court, following its holding that petitioners were vicariously liable and therefore subject to an injunction, it is obviously not the proper frame of reference for our discussion. For the reasons previously stated, we have concluded that petitioners were not properly subject to an injunction on any of the theories set forth by the District Court. The issue before us, therefore, is whether a party not subject to liability for violating the law may nonetheless be assessed a proportionate share of the costs of implementing a decree to assure nondiscriminatory practices on the part of another party which was properly enjoined. We find respondent's arguments based on the traditional equitable authority of courts to be unpersuasive. In Milliken v. Bradley, 433 U.S. 267 (1977), upon which respondents rely, and which we believe to be the case most closely in point, we expressly noted that the state petitioners had been found guilty of creating at least a portion of the constitutional violation which the order challenged in that case was designed to remedy. Id., at 281-282, 289. Thus our holding there was consistent with our opinion in Hills v. Gautreaux, 425 U.S. 284 (1976), where we explained the relationship between our holding in the first Milliken case, Milliken v. Bradley, 418 U.S. 717 (1974), and our opinion in Swann v. [458 U.S. 375, 399] Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). We read these earlier decisions as recognizing "fundamental limitations on the remedial powers of the federal courts." 425 U.S., at 293 . Those powers could be exercised only on the basis of a violation of the law and could extend no farther than required by the nature and the extent of that violation. Id., at 293-294. This principle, we held, was not one limited to school desegregation cases, but was instead "premised on a controlling principle governing the permissible scope of federal judicial power, a principle not limited to a school desegregation context." Id., at 294, n. 11. We think that the principle enunciated in these cases, transposed to the instant factual situation, offers no support for the imposition of injunctive relief against a party found not to have violated any substantive right of respondents. This is not to say that defendants in the position of petitioners might not, upon an appropriate evidentiary showing, be retained in the lawsuit and even subjected to such minor and ancillary provisions of an injunctive order as the District Court might find necessary to grant complete relief to respondents from the discrimination they suffered at the hands of the Union. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399 -400 (1982). But that sort of minor and ancillary relief is not the same, and cannot be the same, as that awarded against a party found to have infringed the statutory rights of persons in the position of respondents. The order of the District Court, insofar as it runs against petitioners, cannot be regarded as "minor" or "ancillary" in any proper sense of those terms. First, it imposes considerable burdens on the employers and associations. It directs the employers to meet detailed "minority utilization goals" in their hiring, keyed to the number of hours worked. App. to Pet. for Cert. in No. 81-280, p. 236. If they are unable to do so through referrals from Local 542, they are required to hire minority operating engineers who are not affiliated with the [458 U.S. 375, 400] Union. Ibid. If the goals are still not satisfied, the employers must recruit and hire unskilled minority workers from the community and provide on-the-job training. Id., at 236-237. The employers are also obligated to make quarterly reports detailing the extent of their compliance with these directives. Id., at 241-242. Finally, the District Court imposed on the employers and the associations a share of the financial cost incidental to enforcement of the remedial decree as a whole. Id., at 252-254. See 507 F. Supp. 1146 (1980). According to petitioners, the expense of the decree in the first year of its 5-year life exceeded $200,000. See Brief for Petitioner in No. 81-280, p. 45, n. 77. Absent a supportable finding of liability, we see no basis for requiring the employers or the associations to aid either in paying for the cost of the remedial program as a whole or in establishing and administering the training program. Nor is the imposition of minority hiring quotas directly upon petitioners the sort of remedy that may be imposed without regard to a finding of liability. If the Union and the JATC comply with the decree by training and referring minority workers, we see no reason to assume, absent supporting evidence, that the employers will not hire the minority workers referred pursuant to the collective-bargaining agreement, and employ them at wages and hours commensurate with those of nonminority workers. If experience proves otherwise, the District Court will then have more than sufficient grounds for including the employers within the scope of the remedial decree. To the extent that the remedy properly imposed upon the Union and the JATC requires any adjustment in the collective-bargaining contract between petitioners and the Union, it is entirely appropriate for the District Court to fashion its injunctive remedy to so provide, and to have that remedy run against petitioners as well as the Union and the JATC. But the injunctive decree entered by the District Court as presently drawn treats petitioners as if they had been properly [458 U.S. 375, 401] found liable for the Union's discrimination. A decree containing such provisions, we hold, is beyond the traditional equitable limitations upon the authority of a federal court to formulate such decrees. Nor does the All Writs Act, 28 U.S.C. 1651(a), support the extensive liability imposed upon petitioners by the District Court. The District Court did not rely upon this Act, and we think it completely wide of the mark in justifying the relief granted by the District Court. That Act was most recently considered by this Court in United States v. New York Telephone Co., 434 U.S. 159 (1977), where we said: "This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained . . . ." Id., at 172. In New York Telephone, we held that the All Writs Act was available to require a third party to assist in the carrying out of a District Court order pertaining to the installation of pen registers, and in doing so we noted that "[t]he order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations." Id., at 175. An examination of our cases which have relied on the All Writs Act convinces us that respondents are simply barking up the wrong tree when they seek to support the injunctive order of the District Court against petitioners on the basis of the provisions of that Act. There was no need for the District Court to treat petitioners as strangers to this lawsuit, and therefore to rely upon some extraordinary form of process or writ to bring them before the court. Petitioners had been named as defendants by respondents in their complaint, and they litigated the injunctive liability phase of the action before the District Court. Petitioners were parties to the action in every sense of the word, and subject to the jurisdiction of the District Court both as to the imposition of liability [458 U.S. 375, 402] and as to the framing of a remedial decree. The difficulty faced by respondents in supporting the decree of the District Court insofar as it grants affirmative relief and requires payment toward the cost of implementing the decree is not that petitioners would otherwise be strangers to the action. The difficulty lies instead with the fact that on the record before the District Court the petitioners could not properly be held liable to any sort of injunctive relief based on their own conduct. Thus insofar as respondents' arguments for the imposition of remedial obligations upon petitioners rests upon the assumption that petitioners were properly found liable for the violation of respondents' rights to be free from discrimination, that assumption can no longer stand in view of the conclusions previously set forth in this opinion. Insofar as respondents' assertions are based on some authority of the District Court to impose the sort of obligations which it did upon petitioners even though petitioners could not be held liable on the record before the District Court, we hold that such obligations can be imposed neither under traditional equitable authority of the District Court nor under the All Writs Act. 22 [458 U.S. 375, 403] The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Footnotes [Footnote 1 The petitioner associations are the General Building Contractors Association (GBCA), the Contractors Association of Eastern Pennsylvania (CAEP), and the United Contractors Association (UCA). The fourth [458 U.S. 375, 379] group, the Pennsylvania Excavating Contractors Association, was dissolved in 1972 after the commencement of this action. [Footnote 2 A second strike occurred in 1963 when the contractor associations unsuccessfully sought to remove the hiring hall provision from the area collective-bargaining agreement. [Footnote 3 The District Court found that "a vast majority of the employers are not and have not been active members of the defendant associations." Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 469 F. Supp. 329, 342 (ED Pa. 1978). Nevertheless, the court found that "the negotiations conducted by those bodies have established a standard to which the unaffiliated contractors may conform." Ibid. [Footnote 4 The complaint did not assert a Title VII cause of action against petitioners because they were not named in the complaint filed by the plaintiffs with the Equal Employment Opportunity Commission, a precondition to suit in federal court. See Brief for Individual and Class Respondents 12, n. 18. [Footnote 5 Certification of this class evidently was influenced by the District Court's conclusion that liability could be imposed without regard to individualized issues such as the intent or work-force statistics of the individual employers. See 469 F. Supp., at 384, 414. The court emphasized that the determination of liability in damages could require individualized proof; it [458 U.S. 375, 381] therefore held out the possibility that the defendant class might be decertified in the second stage of the proceedings. Id., at 413, 415, 419-420. [Footnote 6 The District Court's legal conclusions addressed only the liability of Local 542. The court explained: "Because of the JATC's participation in the overall intentional discrimination of the union, there is no need to discuss its legal liability separately. The JATC is liable as the union is liable." Id., at 401, n. 52. [Footnote 7 The District Court absolved petitioners of liability under 42 U.S.C. 1985(3) (1976 ed., Supp. IV), noting that "no per se or vicarious liability theory could be used to hold a class of employers liable for conspiracy to commit the discrimination practiced by the union." 469 F. Supp., at 413. Absent such a theory, the plaintiffs could not prevail because "there was no sufficient proof that as a class the employers agreed to violate equal protection rights or equal privileges and immunities." Ibid. Moreover, "[n]ot even acquiescence of the whole class of employers in the sense of a conscious toleration of the discrimination of the union ha[d] been shown." Ibid. In light of its disposition, the court found it unnecessary to address other causes of action alleged by the plaintiffs. See id., at 386, n. 43. [Footnote 8 The District Court concluded, by analogy to Title VII, that a violation of 1981 could be made out by "proof of disparate impact alone." Id., at 401. The court referred to Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which we held that Title VII forbids the use of employment tests that produce a disproportionate racial impact unless the employer shows "a manifest relationship to the employment in question," id., at 432. See Teamsters v. United States, 431 U.S. 324, 335 -336 (1977). The District Court's holding on this issue is contrary to the holding of every Court of Appeals that has addressed the matter, including that of the Third Circuit in a subsequent case. See Guardians Assn. v. Civil Service Comm'n of New York City, 633 F.2d 232, 263-268 (CA2 1980), cert. granted, 454 U.S. 1140 (1982); Croker v. Boeing Co., 662 F.2d 975, 984-989 (CA3 1981) (en banc); Williams v. DeKalb County, 582 F.2d 2 (CA5 1978); Mescall v. Burrus, 603 F.2d 1266, 1269-1271 (CA7 1979); Craig v. County of Los Angeles, 626 F.2d 659, 668 (CA9 1980), cert. denied, 450 U.S. 919 (1981); Chicano Police Officer's Assn. v. Stover, 552 F.2d 918, 920-921 (CA10 1977). Two other Circuits have approved a requirement of discriminatory intent in dicta. See Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 14 (CA1 1979); Detroit Police Officers' Assn. v. Young, 608 F.2d 671, 692 (CA6 1979), cert. denied, 452 U.S. 938 (1981). See also Johnson v. Alexander, 572 F.2d 1219, 1223-1224 (CA8), cert. denied, 439 U.S. 986 (1978); Donnell v. General Motors Corp., 576 F.2d 1292, 1300 (CA8 1978). But see Kinsey v. First Regional Securities, Inc., 181 U.S. App. D.C. 207, 215, n. 22, 557 F.2d 830, 838, n. 22 (1977). [Footnote 9 Section 1982 provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." [Footnote 10 Section 1 of the Act of Apr. 9, 1866, read in part: "That all persons born in the United States and not subject to any foreign power, . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." [Footnote 11 "That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void." 16 Stat. 144. Section 18 of the 1870 Act also re-enacted the 1866 Act and declared that 16 "shall be enforced according to the provisions of said act." Ibid. [Footnote 12 Cong. Globe, 39th Cong., 1st Sess., 129 (1866). [Footnote 13 Discussion of the Black Codes occupied a central place in the congressional debates leading to enactment of the 1866 Act. See id., at 588-589 (remarks of Rep. Donnelly); 602 (Sen. Lane); 603 (Sen. Wilson); 1123-1124 (Rep. Cook); 1118-1119 (Rep. Wilson); 1151-1152, 1153 (Rep. Thayer); 1160 (Rep. Windom); 1785 (Sen. Stewart); 1833-1835 (Rep. Lawrence); 1838-1839 (Rep. Clarke). The Codes are described in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 29-44 (1871). [Footnote 14 See, e. g., Cong. Globe, 39th Cong., 1st Sess., supra, at 1124 (Rep. Cook); 1151-1152 (Rep. Thayer); 1159 (Rep. Windom); 1785 (Sen. Stewart); 1839 (Rep. Clarke). See also Memphis v. Greene, 451 U.S. 100, 131 -135 (1981) (WHITE, J., concurring in judgment). [Footnote 15 We attach significance to the fact that throughout much of the congressional debates, S. B. 61, which became the 1866 Act, contained an opening declaration that "there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory [458 U.S. 375, 389] of the United States on account of race, color, or previous condition of slavery." See Cong. Globe, 39th Cong., 1st Sess., 474 (1866). This passage had occasioned controversy in both the Senate and the House because of the breadth of the phrase "civil rights and immunities." After the Senate had passed the bill and as debates in the House were drawing to a close, the bill's floor manager, Representative Wilson, introduced an amendment proposed by the House Judiciary Committee, of which he was also the Chairman. That amendment deleted the language quoted above and left the bill as it would read when ultimately enacted. See n. 10, supra. Representative Wilson explained that the broad language of the original bill could have been interpreted to encompass the right of suffrage and other political rights. "To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section." Cong. Globe, 39th Cong., 1st Sess., supra, at 1367. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 292 , n. 22 (1976). The deleted language, emphasized above, strongly suggests that Congress was primarily concerned with intentional discrimination. That the passage was removed in an effort to narrow the scope of the legislation sharply undercuts the view that the 1866 Act reflects broader concerns. [Footnote 16 See, e. g., Cong. Globe, 39th Cong., 1st Sess., supra, at 1294 (Rep. Wilson); id. at 2465 (Rep. Thayer). [Footnote 17 It is true that 1981, because it is derived in part from the 1866 Act, has roots in the Thirteenth as well as the Fourteenth Amendment. Indeed, we relied on that heritage in holding that Congress could constitutionally enact 1982, which is also traceable to the 1866 Act, without limiting its reach to "state action." See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968). As we have already intimated, however, the fact that Congress acted in the shadow of the Thirteenth Amendment does not demonstrate that Congress sought to eradicate more than purposeful discrimination when it passed the 1866 Act. For example, Congress also enacted 42 U.S.C. 1985(3) (1976 ed., Supp. IV) in part to implement the commands of the Thirteenth Amendment. See Griffin v. Breckenridge, 403 U.S. 88, 104 -105 (1971). While holding that 1985(3) does not require state action but also reaches private conspiracies, we have emphasized that a violation of the statute requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id., at 102. We need not decide whether the Thirteenth Amendment itself reaches practices with a disproportionate effect as well as those motivated by discriminatory purpose, or indeed whether it accomplished anything more than the abolition of slavery. See Memphis v. Greene, 451 U.S., at 125 -126. We conclude only that the existence of that Amendment, and the fact that it authorized Congress to enact legislation abolishing the "badges and incidents of slavery," Civil Rights Cases, 109 U.S. 3, 20 (1883), do not evidence congressional intent to reach disparate effects in enacting 1981. [Footnote 18 In this case, the associations were held liable because they negotiated an agreement, fair on its face, which was later implemented by another [458 U.S. 375, 393] party in a manner that was not only discriminatory but in violation of the agreement itself and in a manner of which the associations were neither aware nor had reason to be aware. Since the associations' only role was as agent for employers whose hiring would actually be governed by the agreement, the District Court's theory presumably would also permit the imposition of liability on the attorneys who actually conducted the contract negotiations. We are unaware of any authority supporting such an extended application of respondeat superior. [Footnote 19 According to respondents, the District Court's conclusion that petitioners retained the power to control the hiring hall was a finding of fact that cannot be set aside unless clearly erroneous. We disagree. The District Court found that petitioners had the "power to oppose" the Union, a conclusion we do not question. Whether the power to oppose the Union is equivalent to a right of control sufficient to invoke the doctrine of respondeat superior is, however, a legal question to which we must devote our independent judgment. [Footnote 20 The court relied on Restatement 214: "A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty." [Footnote 21 Respondents also contend that petitioners can be held liable on the theory that the hiring hall was a "joint enterprise" involving petitioners as well as the Union. They point to language in the District Court's opinion holding that "the union hiring hall was the agent for two principals - the union and the contractors, with their respective associations." 469 F. Supp., at 411. Even this theory, however, requires, among other things, the existence of a mutual right of control as between the members of the enterprise. See Restatement 491; 2 Harper & James 26.13, p. 1414. For reasons we have already stated, there is no record basis for finding that petitioners had a right to control Local 542 in its administration of the hiring hall. We also doubt the validity of the assumption that the hiring hall is a separate entity, except perhaps as a physical structure. The District Court did not find, and respondents do not assert, that the hiring hall has a separate juridical existence. Indeed, in discussing the operation of the hiring hall, the District Court made clear that it was imposing liability on the basis of the Union's conduct. As used in the court's opinion, the phrase "hiring hall" appears to be no more than a shorthand reference for the referral process administered on a day-to-day basis by the Union. [Footnote 22 Petitioners have raised several objections to the District Court's certification of a defendant class. In light of our disposition, however, we find it unnecessary to reach these issues. It is evident from the District Court's opinion that certification of the defendant class was premised on theories of liability that made individualized questions irrelevant. See n. 5, supra. We have now rejected those theories, and we assume that the District Court will reconsider the issue of class certification in the event of a new trial to determine liability. Petitioners have also questioned the standing of respondent Commonwealth of Pennsylvania to act either on its own behalf or as parens patriae in this litigation. We need not reach this issue either. Petitioners have not challenged the standing of the other plaintiffs and, therefore, even if Pennsylvania lacks standing, the District Court possessed Art. III jurisdiction to entertain those common issues presented by all plaintiffs. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160 (1981); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 , [458 U.S. 375, 403] 264, n. 9 (1977). Petitioners note that Pennsylvania has sought attorney's fees in its own right, but our judgment has removed the basis for such an award against petitioners until such time as Pennsylvania can again assert status as a prevailing party. Until Pennsylvania obtains relief different from that sought by plaintiffs whose standing has not been questioned, we decline to address the Commonwealth's standing. JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins, concurring. I concur in the Court's opinion today holding that a cause of action based on 42 U.S.C. 1981 requires proof of intent to discriminate, that the employers cannot be held vicariously liable for the discrimination practiced by Local 542, and that 1981 does not impose a "nondelegable duty" on the employers to insure that there is no discrimination in the Union's selection of the work force. I write separately, however, in order to state expressly one of the options open to the District Court on remand, and to elaborate on the Court's comments regarding the scope of the federal courts' equitable power to afford full relief. I In determining that the petitioners cannot be held vicariously liable for the discriminatory conduct of the JATC, the Court is careful to note that its holding is based on the failure of the trial court to make "findings regarding the relationship between the JATC and petitioners . . . that might support application of respondeat superior." Ante, at 394. 1 In particular, because the record contains no findings regarding [458 U.S. 375, 404] whether the employers maintain some control over the activities of the JATC, either through the employer-appointed trustees or through other means, the doctrine of respondeat superior is simply inapplicable. I would briefly note the limits of the Court's holding. Once this case has been remanded to the District Court, nothing in the Court's opinion prevents the respondents from litigating the question of the employers' liability under 1981 by attempting to prove the traditional elements of respondeat superior. II Regarding the scope of a federal court's equitable powers to afford full relief, I agree with the Court's holding that "a party not subject to liability for violating the law [may not] be assessed a proportionate share of the costs of implementing a decree to assure nondiscriminatory practices on the part of another party which was properly enjoined." Ante, at 398. 2 I also agree with the Court's ancillary holding that the District Court may not require quarterly reports from the employers detailing their compliance with the court's ill-founded injunction. Of course, since the employers are not liable for general injunctive relief, such reports are unnecessary. Under the appropriate circumstances, however, I believe other reports properly could be required of the employers, for example, to aid the court by charting the changes resulting from the injunction imposed on the Union and the JATC. Quite recently, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), this Court held that 706(g) of Title VII of the Civil Rights Act of 1964 authorizes a federal court to order retroactive seniority relief over the objections of [458 U.S. 375, 405] a union that was not guilty of discrimination. The Court stated: "Teamsters v. United States, 431 U.S. 324 (1977), . . . makes it clear that once there has been a finding of discrimination by the employer, an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated. In Teamsters, the parties agreed to a decree which provided that the District Court would decide `whether any discriminatees should be awarded additional equitable relief such as retroactive seniority.' Id., at 331, n. 4. Although we held that the union had not violated Title VII by agreeing to and maintaining the seniority system, we nonetheless directed the union to remain in the litigation as a defendant so that full relief could be awarded the victims of the employer's post-Act discrimination. Id., at 356, n. 43." Id., at 400. 3 As the Court acknowledges today, it is entirely possible that full relief cannot be granted without subjecting the petitioners to some incidental or ancillary provisions of the court's injunctive order. It is thus conceivable, for example, that quarterly reports providing employment statistics necessary for the court to ascertain whether its injunctive decree is being properly implemented could be ordered under the court's equitable powers to effectuate its decree. [Footnote 1 The only facts offered by the respondents supporting application of respondeat superior are that half of the trustees administering the JATC are appointed by the employer associations, and that the JATC is funded entirely by mandatory employer contributions. [Footnote 2 In the present cases, the District Court ordered the three employer associations to pay 10% of the costs of remedial relief, and the employer, Glasgow, to pay 5%. Because the cost of relief to date has been approximately $200,000, the petitioners' share of the cost has been $70,000. [Footnote 3 In support of this statement, the Court in Teamsters cited Rule 19(a)(1) of the Federal Rules of Civil Procedure, which requires a district court to join a person as a party if "in his absence complete relief cannot be accorded among those already parties." JUSTICE STEVENS, concurring in part and concurring in the judgment. As I noted in my separate opinion in Runyon v. McCrary, 427 U.S. 160, 189 , the Congress that enacted 1 of the Civil [458 U.S. 375, 406] Rights Act of 1866 "intended only to guarantee all citizens the same legal capacity to make and enforce contracts, to obtain, own, and convey property, and to litigate and give evidence." Any violation of that guarantee - whether deliberate, negligent, or purely accidental - would, in my opinion, violate 42 U.S.C. 1981. The statute itself contains no requirement that an intent to discriminate must be proved. The Court has broadened the coverage of 1981 far beyond the scope actually intended by its authors; in essence, the Court has converted a statutory guarantee of equal rights into a grant of equal opportunities. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 ; Runyon v. McCrary, supra. Whether or not those decisions faithfully reflect the intent of Congress, the enlarged coverage of the statute "is now an important part of the fabric of our law." Runyon, supra, at 190 (STEVENS, J., concurring). Since I do not believe Congress intended 1981 to have any application at all in the area of employment discrimination generally covered by Title VII of the Civil Rights Act of 1964, an analysis of the motives and intent of the Reconstruction Congress cannot be expected to tell us whether proof of intentional discrimination should be required in the judicially created portion of the statute's coverage. Since Congress required no such proof in the statute it actually enacted, a logician would be comfortable in concluding that no such proof should ever be required. Nevertheless, since that requirement tends to define the entire coverage of 1981 in a way that better reflects the basic intent of Congress than would a contrary holding, I concur in the conclusion reached by the Court in Part II of its opinion insofar as it relates to the statutory protection of equal opportunity but, perhaps illogically, would reach a different conclusion in a case challenging a denial of a citizen's civil rights. Accordingly, I join the Court's judgment and Parts III and IV of its opinion. [458 U.S. 375, 407] JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. Today the Court reaches out and decides that 42 U.S.C. 1981 requires proof of an intent to discriminate - an issue that is not at all necessary to the disposition of these cases. Because I find no support for the majority's resolution of this issue, and because I disagree with its disposition of these cases even if proof of intent should ordinarily be required, I respectfully dissent. I The question whether intent generally should be required in 1981 actions is at most tangentially related to these cases. There was unquestionably intentional discrimination on the part of both the union (Local 542) and the Joint Apprenticeship and Training Committee (JATC), a body composed of officials from the union and the petitioner contracting associations, which jointly administered the apprenticeship and training program. As a result, the only question that the Court need address today is whether limited injunctive liability may be vicariously imposed upon an employer when the person or entity to whom it delegates a large portion of its hiring decisions intentionally discriminates on the basis of race. However, because the majority has chosen to reach first the more general question whether proof of intent is a prerequisite to recovery in a 1981 action, I likewise will address this issue first. Section 1981 provides in unqualified terms: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ." 42 U.S.C. 1981. [458 U.S. 375, 408] The plain language does not contain or suggest an intent requirement. A violation of 1981 is not expressly conditioned on the motivation or intent of any person. The language focuses on the effects of discrimination on the protected class, and not on the intent of the person engaging in discriminatory conduct. Nothing in the statutory language implies that a right denied because of sheer insensitivity, or a pattern of conduct that disproportionately burdens the protected class of persons, is entitled to any less protection than one denied because of racial animus. The Court attaches no significance to the broad and unqualified language of 1981. Furthermore, the majority finds no support for its conclusion that intent should be required in the legislative history to 1 of the 1866 Act, the precursor to 1981. Instead, in the face of this unqualified language and the broad remedial purpose 1981 was intended to serve, the majority assumes that Congress intended to restrict the scope of the statute to those situations in which racial animus can be proved on the ground that the legislative history contains no "convincing evidence" to the contrary. Ante, at 391. In my view, this approach to statutory construction is not only unsound, it is also contrary to our prior decisions, which have consistently given 1981 as broad an interpretation as its language permits. See, e. g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976); Runyon v. McCrary, 427 U.S. 160 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The fallacy in the Court's approach is that, in construing 1981 and its legislative history, the Court virtually ignores Congress' broad remedial purposes and our paramount national policy of eradicating racial discrimination and its pernicious effects. When viewed in this light, it is clear that proof of intentional discrimination should not be required in order to find a violation of 1981. [458 U.S. 375, 409] Although the Thirty-ninth Congress that passed the Civil Rights Act of 1866 did not specifically address the question whether intent should be required, the conclusion is inescapable that the congressional leadership intended to effectuate "the result of a change from a centuries old social system based on involuntary labor, with all the notions of racial unsuitability for the performance of anything but menial labor under close supervision, to the free labor system." Croker v. Boeing Co., 662 F.2d 975, 1006 (CA3 1981) (Gibbons, J., with whom Higginbotham and Sloviter, JJ., joined, dissenting in part) (emphasis in original). When this Congress convened, the Thirteenth Amendment had been ratified, abolishing slavery as a legal status. However, it was clear that in reality, Negroes were hardly accorded the employment and other opportunities accorded white persons generally. Thus, this Congress undertook to provide in fact the rights and privileges that were available to Negroes in theory. See generally J. tenBroek, The Antislavery Origins of the Fourteenth Amendment 156-180 (1951) (discussing the intent of the Thirty-ninth Congress to ensure to Negroes the practical freedom and equality which was already present at law, to reach private, not merely governmental conduct, and to provide affirmative obligations on the government to protect Negroes from unequal treatment). Four separate but related measures were proposed in an effort to accomplish this purpose. 1 In this general climate, the 1866 Civil Rights Act was not an isolated technical statute dealing with only a narrow subject. Instead, it was an integral part of a broad congressional scheme intended to work a major revolution in the prevailing [458 U.S. 375, 410] social order. 2 It is inconceivable that the Congress which enacted this statute would permit this purpose to be thwarted by excluding from the statute private action that concededly creates serious obstacles to the pursuit of job opportunities by Negroes solely because the aggrieved persons could not prove that the actors deliberately intended such a result. Even less conceivable is the notion, embraced by the Court's opinion today, that this Congress intended to absolve employers from even injunctive liability imposed as a result of intentional discrimination practiced by the persons to whom they had delegated their authority to hire employees. See infra, at 414-418. The legislative history demonstrates that the Thirty-ninth Congress intended not merely to provide a remedy for pre-existing rights, but to eradicate the "badges of slavery" that remained after the Civil War and the enactment of the Thirteenth Amendment. Congress was acutely aware of the difficulties that federal officials had encountered in effectuating [458 U.S. 375, 411] the change from the system of slavery to a system of free labor even though the legal and constitutional groundwork for this change had already been laid. In the report that formed the working paper for the Joint Committee on Reconstruction and was of central importance to the deliberations of the Thirty-ninth Congress, General Schurz noted: "That the result of the free labor experiment made under circumstances so extremely unfavorable should at once be a perfect success, no reasonable person would expect. Nevertheless, a large majority of the southern men with whom I came into contact announced their opinions with so positive an assurance as to produce the impression that their minds were fully made up. In at least nineteen cases of twenty the reply I received to my inquiry about their views on the new system was uniformly this: `You cannot make the negro work without physical compulsion.' I heard this hundreds of times, heard it wherever I went, heard it in nearly the same words from so many different persons, that at last I came to the conclusion that this is the prevailing sentiment among the southern people. There are exceptions to the rule, but, as far as my information extends, far from enough to affect the rule. In the accompanying documents you will find an abundance of proof in support of this statement. There is hardly a paper relative to the negro question annexed to this report which does not, in some direct or indirect way, corroborate it." S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1865), reprinted in The Reconstruction Amendments' Debates 88 (Virginia Comm'n on Constitutional Government, 1967). Fully aware of this prevailing attitude, the leaders of Congress set about to enact legislation that would ensure to Negroes the opportunity to participate equally in the free labor system by providing an instrument by which they could strike down barriers to their participation, whether those [458 U.S. 375, 412] barriers were erected with the conscious intent to exclude or with callous indifference to exclusionary effects. Congress knew that this attitude could manifest itself in a number of different ways and intended to protect Negro workers against not only flagrant, intentional discrimination, but also against more subtle forms of discrimination which might successfully camouflage the intent to oppress through facially neutral policies. Congressional awareness of the potential role that facially neutral measures might play in impeding the ability of Negroes to enjoy equal job opportunities is also reflected in the working paper which formed the basis for the 1866 Act. Addressing this problem, General Schurz stated: "What particular shape the reactionary movement will assume it is at present unnecessary to inquire. There are a hundred ways of framing apprenticeship, vagrancy, or contract laws, which will serve the purpose . . . ." Id., at 92. Unfortunately, this awareness seems utterly lacking in the Court's opinion today. In order to hold that 1981 requires a showing of intent, the majority must assume that the rights guaranteed under 1981 - to make and enforce contracts on the same basis as white persons - can be adequately protected by limiting the statute to cases where the aggrieved person can prove intentional discrimination. In taking this extraordinarily naive view, the Court shuts its eyes to reality, ignoring the manner in which racial discrimination most often infects our society. Today, although flagrant examples of intentional discrimination still exist, discrimination more often occurs "on a more sophisticated and subtle level," the effects of which are often as cruel and "devastating as the most crude form of discrimination." Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 469 F. Supp. 329, 337 (ED Pa. 1978) (Higginbotham, Circuit Judge, sitting by designation). 3 I think that Judge Higginbotham most accurately [458 U.S. 375, 413] recognized this problem when he noted that "[t]he facts of the instant case . . . demonstrate the complexity and subtlety of the interrelationship of race, collective bargaining, craft unions, the employment process and that ultimate goal - real jobs." Ibid. He further noted that "[a]t the critical level of viable jobs and equal opportunities, there were intentional and persistent efforts to exclude and discourage most of the minorities who, but for their race, would have been considered for entry into the union and for the more lucrative jobs." Ibid. Racial discrimination in all areas, and particularly in the areas of education and employment, is a devastating and reprehensible policy that must be vigilantly pursued and eliminated from our society: "Racial discrimination can be the most virulent of strains that infect a society, and the illness in any society so infected can be quantified. Exposure to embarrassment, humiliation, and the denial of basic respect can and does cause psychological and physiological trauma to its victims. This disease must be recognized and vigorously eliminated wherever it occurs. But racial discrimination takes its most malevolent form when it occurs in employment, for prejudice here not only has an immediate economic effect, it has a fulminating integrant that perpetuates the pestilences of degraded housing, unsatisfactory neighborhood amenities, and unequal education." Croker v. Boeing Co., 662 F.2d, at 1002 (Aldisert, J., with whom Higginbotham, J., joined, dissenting in part). The purposes behind 1981, and the profound national policy of blotting out all vestiges of racial discrimination, are no less frustrated when equal opportunities are denied through cleverly [458 U.S. 375, 414] masked or merely insensitive practices, where proof of actual intent is nearly impossible to obtain, than when instances of intentional discrimination escape unremedied. For this reason, I cannot accept the Court's glib and unrealistic view that requiring proof of intent in 1981 actions does not frustrate that statute's purpose of protecting against the devastating effects of racial discrimination in employment. II Even if I agreed with the Court that intent must be proved in a 1981 action, I could not agree with its conclusion that the petitioner contracting associations should be immunized, even from injunctive liability, for the intentional discrimination practiced by the union hall to which they delegated a major portion of their hiring decisions. Under 1981, minorities have an unqualified right to enter into employment contracts on the same basis as white persons. It is undisputed that in these cases, the respondent class was denied this right through intentional discrimination. The fact that the associations chose to delegate a large part of the hiring process to the local union hiring hall, which then engaged in intentional discrimination, does not alter the fact that respondents were denied the right to enter into employment contracts with the associations on the same basis as white persons. At the very least, 1981 imposes on employers the obligation to make employment decisions free from racial considerations. The hiring decisions made by the contracting associations in these cases were fraught with racial discrimination. Solely because of their race, hundreds of minority operating engineers were totally excluded from the industry and could not enter into employment contracts with any employer. Those minorities allowed into the industry suffered discrimination in referrals, and thus they too were denied the same right as white persons to contract with the contracting associations. Not one of the petitioner contracting associations has ever claimed, nor could they, that minorities had [458 U.S. 375, 415] the same right as white operating engineers to contract for employment. Instead, the contracting associations attempt to hide behind the veil of ignorance, shifting their responsibility under 1981 to the very entity which they chose to assist them in making hiring decisions. 4 The suggestion that an employer's responsibility under 1981 depends upon its own choice of [458 U.S. 375, 416] a hiring agent finds no support in the statute, nor does any other source of law authorize the circumvention of 1981 that the contracting associations seek here. Their obligation to make employment contracts free from racial discrimination is a nondelegable one - it does not disappear when, as is often the case, the actual employer designates a particular agent to assist in the hiring process. In my view, the fact that the discriminating entity here is a union hiring hall, and not a person or corporation which has a traditional agent-principal relationship with the employer, does not alter this analysis. Cf. Morrison-Knudsen Co. v. NLRB, 275 F.2d 914 (CA2 1960) (per Swan, J.) (employer cannot escape liability for discrimination against nonunion members by the union hiring hall to which it turns over the task of supplying men for employment), cert. denied, 366 U.S. 909 (1961). The majority does not really analyze the question whether petitioners should be held injunctively liable because 1981 imposes upon them a nondelegable duty. Instead the majority argues that, because it has held that 1981 is intended only to reach intentional discrimination, the statute cannot make employers "guarantors of the workers' rights as against third parties who would infringe them." Ante, at 396. This argument does not withstand analysis. The majority does not assert that employers may escape liability under 1981 by delegating their hiring decisions to a third-party agent. Indeed, in light of the importance attached to the rights 1981 is intended to safeguard, the duty to abide by this statute must be nondelegable, as the majority apparently recognizes. Ante, at 396. Instead, the majority argues that because 1981 imposes only the duty to refrain from intentional discrimination in hiring, it somehow automatically follows that this duty could not have been violated in this case. However, it was precisely this duty that was violated here. The District Court found, and this Court does not disagree, that the entity to whom the petitioner associations effectively delegated their hiring decisions intentionally discriminated against the respondent class on the basis of race in making [458 U.S. 375, 417] these decisions. Even under the Court's own narrow view of the scope of the duty imposed by 1981, then, the duty was unquestionably violated in these cases. The majority obfuscates the issue by suggesting that the District Court imposed upon the contracting associations an obligation to seek out and eliminate discrimination by unrelated third parties wherever it may occur. In reality, the District Court did nothing more than impose limited injunctive liability upon the associations for violating their nondelegable duty under 1981 when the union hiring hall, which effectively made hiring decisions for the associations, engaged in intentional discrimination on the basis of race in making these decisions. By immunizing the employer from the injunctive relief necessary to remedy the intentional discrimination practiced by those through whom the employer makes its hiring decisions, the Court removes the person most necessary to accord full relief - the entity with whom the aggrieved persons will ultimately make a contract. I believe that the District Court appropriately rejected the petitioners' argument when it explained: "With intensity some employers urge that they agreed to the exclusive hiring hall system solely as a matter of economic survival at the end of a destructive ten week strike when the union would not compromise for any other hiring alternative. Yet economic pressures, however strong and harmful they might be, do not create immunity for employers, at least not in [the injunctive] liability phase." 469 F. Supp., at 338. Section 1981 provides Negroes "the same right" to make contracts as white persons enjoy. In the present cases, this unqualified right was violated, and the violation is made no more palatable because the persons who actually made the hiring decisions and referrals, and not the employer itself, engaged in intentional discrimination. 5 The devastating violation [458 U.S. 375, 418] of their rights under 1981 remains the same and will go at least partially unremedied when the person with whom the ultimate employment contract must be made is immunized from even injunctive relief. I cannot impute to the Congress which enacted 1981 the intention to reach such an inequitable and nonsensical result. Accordingly, I must dissent. [Footnote 1 These measures included the Civil Rights Act of 1866, passed over President Johnson's veto; the Freedman's Bureau bill, which would have created a federal agency to ensure that a free labor system in which Negroes had equal participation would in fact be accomplished, and which commanded a clear majority in Congress, but failed to pass over a Presidential veto; a constitutional amendment sponsored by Representative Bingham but not recommended; and the Fourteenth Amendment. [Footnote 2 As the majority recognizes, ante, at 386-387, one of the principal changes Congress hoped to achieve was the elimination of the infamous Black Codes. These included state laws regulating the terms and conditions of employment. In many States, these oppressive laws were facially neutral, literally applying to all laborers without regard to race. The laws prohibited such conduct as refusing to perform work and disobeying an employer, or inducing an employee away from his employer, and many provided for forfeiture of wages if the employee did not fulfill the terms of his employment contract. Other Codes included vagrancy laws, which were vague and broad enough to encompass virtually all Negro adults, and many were facially neutral, applying to white persons as well as to Negroes. See Croker v. Boeing Co., 662 F.2d 975, 1004, n. 5 (CA3 1981) (Gibbons, J., dissenting in part) (citing E. McPherson, Political History of the United States of America During the Period of Reconstruction 30-44 (1871)). The Black Codes were constantly discussed during the debates over the Civil Rights Act of 1866, and Congress clearly intended that the Act would eliminate even those Codes which were facially neutral. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 39-41, 118-125 (1865); id., at 1151-1160, 1838-1839 (1866). See also University of California Regents v. Bakke, 438 U.S. 265, 390 -391 (1978) (separate opinion of MARSHALL, J.). [Footnote 3 When discussing the scope of the Fifteenth Amendment in 1939, Justice Frankfurter was sensitive to the subtle forms that racial discrimination [458 U.S. 375, 413] often takes. Writing for the Court in Lane v. Wilson, 307 U.S. 268, 275 , he stated: "The Amendment nullifies sophisticated as well as simple-minded modes of discrimination." Unfortunately, the Court no longer seems sensitive to this reality. [Footnote 4 Although the District Court held that respondents had not proved that the contracting associations as a class had actual knowledge or had specifically approved of the intentional discrimination, it hardly found them totally blameless in this regard, and it found that the petitioner associations in particular were not innocent. One part of the proof of intentional discrimination by the hiring hall was the fact that Local 542 had intentionally overstated its percentage of minority members to the Federal Government in order to receive federal funds while maintaining an extraordinarily low actual minority percentage. With respect to the petitioner contracting associations, the District Court found: "Any argument that, because the union alone had primary access to the membership data, the [petitioner] contracting associations . . . were not at least reckless participants in this scheme, I find to be devoid of merit and patently incredible. . . . The prospect of deriving . . . an immediate and substantial financial benefit from the federal coffers allowed them to become willing parties to the scheme by capriciously certifying `facts' in anticipation of the government's reliance on them: Having sought to enrich their members with substantial profits, it is now too late to cry innocence and cast the blame elsewhere. These were no innocent prognosticators who were misled by the union's scheme to give inaccurate information." Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 469 F. Supp. 329, 345 (ED Pa. 1978). The District Court further found: "The fact is that the vast majority of individual contractors never hired a minority operating engineer; that the [petitioner associations] signed a statement, relevant to federal approval of the `Affirmative Action Program' . . ., grossly exaggerating minority union membership; and that the gross disparity between the percentage of the minority representation in the labor pool and minority representation in the union along with a gross disparity in hours and wages of minorities as against the minority labor pool percentage is a matter of such broad scope that some or all of the contractors and associations might have had knowledge of it." Id., at 401 (emphasis added). [Footnote 5 I agree with JUSTICE O'CONNOR's observation that nothing in the Court's opinion prevents the District Court on remand from holding the [458 U.S. 375, 418] petitioner associations liable for discrimination practiced by the JATC. Specifically, they may be held liable because the trustees administering the JATC are appointed by the petitioner associations, the JATC is funded by employer contributions, and the associations exercise control over the JATC's actions. I also agree with JUSTICE O'CONNOR that the Court's opinion does not prevent the District Court from requiring petitioners to comply with incidental or ancillary provisions contained in its injunctive order. [458 U.S. 375, 419]

conservative

public_entity

civil_rights

1967-166-01

United States Supreme Court GARDNER v. BRODERICK(1968) No. 635 Argued: April 30, 1968Decided: June 10, 1968 Appellant, a police officer, was subpoenaed by and appeared before a grand jury which was investigating alleged bribery and corruption of police officers, and was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. He refused to do so, was given an administrative hearing, and was discharged solely for his refusal, pursuant to 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement and the New York Court of Appeals affirmed, holding that Garrity v. New Jersey, 385 U.S. 493 , was not controlling, and distinguishing Spevack v. Klein, 385 U.S. 511 (both decided after appellant's discharge). Held: If appellant, a policeman, had refused to answer questions directly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity, supra, the privilege against self-incrimination would not have been a bar to his dismissal. However, his dismissal solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege, and the New York City Charter provision pursuant to which he was dismissed, cannot stand. Pp. 276-279. 20 N. Y. 2d 227, 229 N. E. 2d 184, reversed. Ronald Podolsky argued the cause and filed briefs for appellant. J. Lee Rankin argued the cause for appellees. With him on the brief were Norman Redlich, Stanley Buchsbaum, and Robert T. Hartmann. [392 U.S. 273, 274] Michael J. Silverberg filed a brief for the Patrolmen's Benevolent Association of the City of New York, Inc., as amicus curiae, urging reversal. MR. JUSTICE FORTAS delivered the opinion of the Court. Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, 1 but he was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. 2 Following [392 U.S. 273, 275] his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to 1123 of the New York City Charter. 3 [392 U.S. 273, 276] The New York Supreme Court dismissed his petition for reinstatement, 27 App. Div. 2d 800, 279 N. Y. S. 2d 150 (1967), and the New York Court of Appeals affirmed. 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918 (1968). Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U.S. 511 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585 -586 (1892); Albertson v. SACB, 382 U.S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission, supra, at 79. The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal. About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. New Jersey, 385 U.S. 493 (1967). In that case, we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. [392 U.S. 273, 277] Our holding was summarized in the following statement (at 500): "We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." The New York Court of Appeals considered that Garrity did not control the present case. It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him. The New York Court of Appeals also distinguished our post-Garrity decision in Spevack v. Klein, supra. In Spevack, we ruled that a lawyer could not be disbarred solely because he refused to testify at a disciplinary proceeding on the ground that his testimony would tend to incriminate him. The Court of Appeals concluded that Spevack does not control the present case because different considerations apply in the case of a public official such as a policeman. A lawyer, it stated, although licensed by the state is not an employee. This distinction is now urged upon us. It is argued that although a lawyer could not constitutionally be confronted with Hobson's choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike the lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other "client" or principal. He is a trustee of the public interest, bearing [392 U.S. 273, 278] the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one. 4 We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, 5 without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal. The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. The Constitution of New York State and the City Charter both expressly provided that his failure to do so, as well as his failure to testify, would result in dismissal from his job. He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege. Garrity v. New Jersey, supra. We need not speculate whether, if appellant had executed the waiver of immunity in the circumstances, the effect of our subsequent decision in Garrity v. New Jersey, supra, would have been to nullify the effect of [392 U.S. 273, 279] the waiver. New York City discharged him for refusal to execute a document purporting to waive his constitutional rights and to permit prosecution of himself on the basis of his compelled testimony. Petitioner could not have assumed - and certainly he was not required to assume - that he was being asked to do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner's testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity. Proper regard for the history and meaning of the privilege against self-incrimination, 6 applicable to the States under our decision in Malloy v. Hogan, 378 U.S. 1 (1964), and for the decisions of this Court, 7 dictate the conclusion that the provision of the New York City Charter pursuant to which petitioner was dismissed cannot stand. Accordingly, the judgment is Reversed. MR. JUSTICE BLACK concurs in the result. [For opinion of MR. JUSTICE HARLAN, concurring in the result, see post, p. 285.] Footnotes [Footnote 1 The Assistant District Attorney said to appellant: "You understand . . . that under the Constitution of the United States, as well as the Constitution of New York, no one can be compelled to testify against himself, and that he has a right, the absolute right to refuse to answer any questions that would tend to incriminate him?" [Footnote 2 Appellant was told: "You understand . . . that under the Constitution of New York, as well as the Charter of the City of New York, . . . a public officer, which includes a police officer, when called before a Grand Jury to answer questions concerning the conduct of his public office and the performance of his duties is required to sign a waiver of immunity if he wishes to retain that public office?" The document appellant was asked to sign was phrased as follows: "I . . . do hereby waive all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution, and punishment for or on account of, regarding or relating to any matter, transaction or things, concerning the conduct of my office or the [392 U.S. 273, 275] performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the nomination, election, appointment or official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence documentary or otherwise, before the [blank] Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury." [Footnote 3 That section provides: "If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency." Section 6 of Article I of the New York Constitution provides: "No person shall be . . . compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office . . . or the performance of his official duties . . . refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years . . . and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general." [Footnote 4 Cf. Spevack v. Klein, supra, at 519-520 (concurring in judgment). [Footnote 5 The statements in my separate opinion in Spevack v. Klein, supra, at 519-520, to which the New York Court of Appeals referred, are expressly limited to situations of this kind. [Footnote 6 See Miranda v. Arizona, 384 U.S. 436, 458 -466 (1966), and authorities cited therein. [Footnote 7 See, e. g., Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, supra. [392 U.S. 273, 280]

liberal

public_entity

criminal_procedure

1972-088-01

United States Supreme Court BUTZ v. GLOVER LIVESTOCK COMM'N CO.(1973) No. 71-1545 Argued: February 27, 1973Decided: March 28, 1973 Respondent stockyard operator, who after a hearing had been found to have short-weighted livestock and underpaid consignors on the basis of the false weights, was ordered by a Judicial Officer acting for the Secretary of Agriculture to cease and desist and to keep correct records, and its registration under the Packers and Stockyards Act was suspended for 20 days. The Court of Appeals upheld all but the suspension, which it found inappropriate in view of the other sanctions, and contrary to the Secretary's practice except for "intentional and flagrant" violations. Held: In setting aside the suspension order, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions, since the Secretary had full authority to make the suspension order as a deterrent to violations whether intentional or negligent, and issuance of the order against respondent, who had ignored previous warnings against short-weighting, was not an abuse of administrative discretion. Pp. 185-189. 454 F.2d 109, reversed. BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 189. Keith A. Jones argued the cause for petitioners. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wood, Morton Hollander, and William Kanter. R. A. Eilbott, Jr., argued the cause for respondent. With him on the brief was Edward I. Staten. [411 U.S. 182, 183] MR. JUSTICE BRENNAN delivered the opinion of the Court. The Judicial Officer of the Department of Agriculture, acting for the Secretary of Agriculture, found that respondent, a registrant under the Packers and Stockyards Act, 1921, 42 Stat. 159, 7 U.S.C. 181 et seq., wilfully violated 307 (a) and 312 (a) of the Act, 7 U.S.C. 208 (a) and 213 (a), by incorrect weighing of livestock, and also breached 401, 7 U.S.C. 221, by entries of false weights. An order was entered directing that respondent cease and desist from the violations and keep correct accounts, and also suspending respondent as a registrant under the Act for 20 days. Upon review of the decision and order, the Court of Appeals for the Eighth Circuit upheld, as supported by substantial evidence, the findings that respondent violated the Act by short-weighting cattle, and also sustained the cease-and-desist order and the order to keep correct accounts. The Court of Appeals, however, set aside the 20-day suspension. 454 F.2d 109 (1972). We granted certiorari to consider whether, in doing so, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions. 409 U.S. 947 (1972). We conclude that the setting aside of the suspension was an impermissible judicial intrusion into the administrative domain under the circumstances of this case, and reverse. Respondent operates a stockyard in Pine Bluff, Arkansas. As a registered "market agency" under 303 of the Act, 7 U.S.C. 203, respondent is authorized to sell consigned livestock on commission, subject to the regulatory provisions of the Act and the Secretary's implementing regulations. 1 Investigations of respondent's operations [411 U.S. 182, 184] in 1964, 1966, and 1967 uncovered instances of underweighing of consigned livestock. Respondent was informally warned to correct the situation, but when a 1969 investigation revealed more underweighing, the present proceeding was instituted by the Administrator of the Packers and Stockyards Administration. Following a hearing and the submission of briefs, the Department of Agriculture hearing examiner found that respondent had "intentionally weighed the livestock at less than their true weights, issued scale tickets and accountings to the consignors on the basis of the false weights, and paid the consignors on the basis of the false weights." 2 The hearing examiner recommended, in addition to a cease-and-desist order and an order to keep correct records, a 30-day suspension of respondent's registration under the Act. The matter was then referred to the Judicial Officer. After hearing oral argument, the Judicial Officer filed a decision and order accepting the hearing examiner's findings and adopting his recommendations of a cease-and-desist order and an order to keep correct records. The recommended suspension was also imposed but was reduced to 20 days. The Judicial Officer stated: "It is not a pleasant task to impose sanctions but in view of the previous warnings given respondent we conclude that we should not only issue a cease and desist order but also a suspension of respondent [411 U.S. 182, 185] as a registrant under the act but for a lesser period than recommended by complainant and the hearing examiner." 30 Agri. Dec. 179, 186 (1971). The Court of Appeals agreed that 7 U.S.C. 204 authorized the Secretary to suspend "any registrant found in violation of the Act," 454 F.2d, at 113, that the suspension procedure here satisfied the relevant requirements of the Administrative Procedure Act, 5 U.S.C. 558, and that "the evidence indicates that [respondent] acted with careless disregard of the statutory requirements and thus meets the test of `wilfulness.'" 454 F.2d, at 115. The court nevertheless concluded that the suspension order was "unconscionable" under the circumstances of this case. The court gave two reasons. The first, relying on four previous suspension decisions, was that the Secretary's practice was not to impose suspensions for negligent or careless violations but only for violations found to be "intentional and flagrant," and therefore that the suspension in respondent's case was contrary to a policy of "`achiev[ing] . . . uniformity of sanctions for similar violations.'" The second reason given was that "[t]he cease and desist order coupled with the damaging publicity surrounding these proceedings would certainly seem appropriate and reasonable with respect to the practice the Department seeks to eliminate." Id., at 114, 115. The applicable standard of judicial review in such cases required review of the Secretary's order according to the "fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy `the relation of remedy to policy is peculiarly a matter for administrative competence.'" American Power Co. v. SEC, 329 U.S. 90, 112 (1946). Thus, the Secretary's choice of sanction was not to be overturned unless the Court of Appeals might find it "unwarranted [411 U.S. 182, 186] in law or . . . without justification in fact . . . ." Id., at 112-113; Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 -414 (1958); FTC v. Universal-Rundle Corp., 387 U.S. 244, 250 (1967); 4 K. Davis, Administrative Law 30.10, pp. 250-251 (1958). The Court of Appeals acknowledged this definition of the permissible scope of judicial review 3 but apparently regarded respondent's suspension as "unwarranted in law" or "without justification in fact." We cannot agree that the Secretary's action can be faulted in either respect on this record. We read the Court of Appeals' opinion to suggest that the sanction was "unwarranted in law" because "uniformity of sanctions for similar violations" is somehow mandated by the Act. We search in vain for that requirement in the statute. 4 The Secretary may suspend [411 U.S. 182, 187] "for a reasonable specified period" any registrant who has violated any provision of the Act. 7 U.S.C. 204. Nothing whatever in that provision confines its application to cases of "intentional and flagrant conduct" or denies its application in cases of negligent or careless violations. Rather, the breadth of the grant of authority to impose the sanction strongly implies a congressional purpose to permit the Secretary to impose it to deter repeated violations of the Act, whether intentional or negligent. Hyatt v. United States, 276 F.2d 308, 313 (CA10 1960); G. H. Miller & Co. v. United States, 260 F.2d 286 (CA7 1958); In re Silver, 21 Agri. Dec. 1438, 1452 (1962). 5 The employment of a sanction within the authority of an administrative agency is thus not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases. FCC v. WOKO, 329 U.S. 223, 227 -228 (1946); FTC v. Universal-Rundle Corp., 387 U.S., at 250 , 251; G. H. Miller & Co. v. United States, supra, at 296; Hiller v. SEC, 429 F.2d 856, 858-859 (CA2 1970); Dlugash v. SEC, 373 F.2d 107, 110 (CA2 1967); Kent v. Hardin, 425 F.2d 1346, 1349 (CA5 1970). Moreover, the Court of Appeals may have been in error in acting on the premise that the Secretary's practice was to impose suspensions only in cases of "intentional and flagrant conduct." 6 The Secretary's practice, rather, apparently is to employ that sanction as in his judgment [411 U.S. 182, 188] best serves to deter violations and achieve the objectives of that statute. Congress plainly intended in its broad grant to give the Secretary that breadth of discretion. Therefore, mere unevenness in the application of the sanction does not render its application in a particular case "unwarranted in law." Nor can we perceive any basis on this record for a conclusion that the suspension of respondent was so "without justification in fact" "as to constitute an abuse of [the Secretary's] discretion." American Power Co. v. SEC, 329 U.S., at 115 ; Moog Industries, Inc. v. FTC, 355 U.S., at 414 ; Barsky v. Board of Regents, 347 U.S. 442, 455 (1954). The Judicial Officer rested the suspension on his view of its necessity in light of respondent's disregard of previous warnings. The facts found concerning the previous warnings and respondent's disregard of these warnings were sustained by the Court of Appeals as based on ample evidence. In that circumstance, the overturning of the suspension authorized by the statute was an impermissible intrusion into the administrative domain. Similarly, insofar as the Court of Appeals rested its action on its view that, in light of damaging publicity about the charges, the cease-and-desist order sufficiently redressed respondent's violations, the court clearly exceeded its function of judicial review. The fashioning of an appropriate and reasonable remedy is for the [411 U.S. 182, 189] Secretary, not the court. The court may decide only whether, under the pertinent statute and relevant facts, the Secretary made "an allowable judgment in [his] choice of the remedy." Jacob Siegel Co. v. FTC, 327 U.S. 608, 612 (1946). Reversed. Footnotes [Footnote 1 7 U.S.C. 201-217a. Specifically, registrants are prohibited from engaging in or using "any unfair, unjustly discriminatory, or [411 U.S. 182, 184] deceptive practice or device in connection with . . . receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling . . . of livestock," 7 U.S.C. 213 (a), and are required to "keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business . . . ." 7 U.S.C. 221. The Secretary's regulations may be found in 9 CFR pt. 201. [Footnote 2 App. 35. [Footnote 3 The Court of Appeals stated: "Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency's statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere. . . . [A]ppellate courts [may not] enter the more spacious domain of public policy which Congress has entrusted in the various regulatory agencies." 454 F.2d 109, 114. [Footnote 4 The Court of Appeals cited a 1962 decision by the Secretary in which appears a reference to "uniformity of sanctions for similar violations." In re Silver, 21 Agri. Dec. 1438 (1962). That reference is no support for the Court of Appeals' decision, however, for the Secretary said expressly in that decision: "False and incorrect weighing of livestock by registrants under the act is a flagrant and serious violation thereof . . ." and "even if respondent did not give instructions for the false weighings, his negligence in allowing the false weighings over an extended period brings such situation within the reach of the cited cases [sustaining sanctions] and we would still order the sanctions below." Id., at 1452 (emphasis added). [Footnote 5 It is by no means clear that respondent's violations were merely negligent. The hearing examiner found that respondent had "intentionally" underweighed livestock, and the Judicial Officer stated: "We conclude then, as did the hearing examiner, that respondent wilfully violated . . . the act." (Emphasis added.) "Wilfully" could refer to either intentional conduct or conduct that was merely careless or negligent. It seems clear, however, that the Judicial Officer sustained the hearing examiner's finding that the violations were "intentional." [Footnote 6 See, e. g., In re Martella, 30 Agri. Dec. 1479 (1971); In re Meggs, 30 Agri. Dec. 1314 (1971); In re Producers Livestock Marketing [411 U.S. 182, 187] Assn., 30 Agri. Dec. 796 (1971); In re Trimble, 29 Agri. Dec. 936 (1970); In re Anson, 28 Agri. Dec. 1127 (1969); In re Williamstown Stockyards, 27 Agri. Dec. 252 (1968); In re Middle Georgia Livestock Sales Co., 23 Agri. Dec. 1361 (1964). These cases involve suspension of registrants under the Packers and Stockyards Act for false weighing of producers' livestock and in none was there a finding that the violation was intentional or flagrant. There are also many cases of suspension for diverse other violations without a finding that the conduct was intentional or flagrant. See, e. g., In re Wallis, 29 Agri. Dec. 37 (1970). MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS joins, dissenting. The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the respondent. Why certiorari was granted is a mystery to me - particularly at a time when the Court is thought by many to be burdened by too heavy a caseload. See Rule 19, Rules of the Supreme Court of the United States. The Court of Appeals did nothing more than review a penalty imposed by the Secretary of Agriculture that was alleged by the respondent to be discriminatory and arbitrary. In approaching its task, the appellate court displayed an impeccable understanding of the permissible scope of review: "The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer's as to which of the various inferences may be drawn from the evidence." 454 F.2d 109, 110-111. . . . . . [411 U.S. 182, 190] "Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency's statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere." Id., at 114. Had the Court of Appeals used the talismanic language of the Administrative Procedure Act, and found the penalty to be either "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. 706 (2) (A), I have no doubt that certiorari would have been denied. But the Court of Appeals made the mistake of using the wrong words, saying that the penalty was "unconscionable," because it was "unwarranted and without justification in fact." 1 Today the Court holds that the penalty was not "unwarranted in law," because it was within permissible statutory limits. But this ignores the valid principle of law that motivated the Court of Appeals - the principle that like cases are to be treated alike. As Professor Jaffe has put the matter: "The scope of judicial review is ultimately conditioned and determined by the major proposition that the constitutional courts of this country are the acknowledged architects and guarantors of the integrity of the legal system. . . . An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The [411 U.S. 182, 191] very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the `common law,' and the ultimate guarantees associated with the Constitution." 2 The reversal today of a wholly defensible Court of Appeals judgment accomplishes two unfortunate results. First, the Court moves administrative decisionmaking one step closer to unreviewability, an odd result at a time when serious concern is being expressed about the fairness of agency justice. 3 Second, the Court serves notice upon the federal judiciary to be wary indeed of venturing to correct administrative arbitrariness. Because I think the Court of Appeals followed the correct principles of judicial review of administrative conduct, I would affirm its judgment. [Footnote 1 The Court of Appeals borrowed this phrasing of the test from this Court's opinion in American Power Co. v. SEC, 329 U.S. 90, 112 -113. [Footnote 2 L. Jaffe, Judicial Control of Administrative Action 589-590 (1965). [Footnote 3 See generally K. Davis, Discretionary Justice: A Preliminary Inquiry (1969), reviewed by Wright, Beyond Discretionary Justice, 81 Yale L. J. 575. [411 U.S. 182, 192]

conservative

person

judicial_power

1976-149-01

United States Supreme Court HUNT v. WASHINGTON APPLE ADVERTISING COMM'N(1977) No. 76-63 Argued: February 22, 1977Decided: June 20, 1977 Appellee, a statutory agency for the promotion and protection of the Washington State apple industry and composed of 13 state growers and dealers chosen from electoral districts by their fellow growers and dealers, all of whom by mandatory assessments finance appellee's operations, brought this suit challenging the constitutionality of a North Carolina statute requiring that all apples sold or shipped into North Carolina in closed containers be identified by no grade on the containers other than the applicable federal grade or a designation that the apples are not graded. A three-judge District Court granted the requested injunctive and declaratory relief, holding that appellee had standing to challenge the statute, that the $10,000 jurisdictional amount of 28 U.S.C. 1331 was satisfied, and that the challenged statute unconstitutionally discriminated against commerce insofar as it affected the interstate shipment of Washington apples. Held: 1. Appellee has standing to bring this action in a representational capacity. Pp. 341-345. (a) An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members. Warth v. Seldin, 422 U.S. 490 . Pp. 342-343. (b) The prerequisites to associational standing described in Warth are clearly present here: (1) At the risk of otherwise losing North Carolina accounts, some Washington apple growers and dealers had (at a per-container cost of 5 to 15) obliterated Washington State grades from the large volume of North Carolina-bound containers; and they had stopped using preprinted containers, thus diminishing the efficiency of their marketing operations; (2) appellee's attempt to remedy these injuries is central to its purpose of protecting and enhancing the Washington apple market; and (3) neither appellee's constitutional claim nor the relief requested requires individualized proof. Pp. 343-344. [432 U.S. 333, 334] (c) Though appellee is a state agency, it is not on that account precluded from asserting the claims of the State's apple growers and dealers since for all practical purposes appellee performs the functions of a traditional trade association. While the apple growers are not "members" of appellee in the traditional trade association sense, they possess all the indicia of organization membership (viz., electing the members, being the only ones to serve on the Commission, and financing its activities), and it is of no consequence that membership assessments are mandatory. Pp. 344-345 (d) Appellee's own interests may be adversely affected by the outcome of this litigation, since the annual assessments that are used to support its activities and which are tied to the production of Washington apples could be reduced if the market for those apples declines as a result of the North Carolina statute. P. 345. 2. The requirements of 1331 are satisfied. Since appellee has standing to litigate its constituents' claims, it may rely on them to meet the requisite amount of $10,000 in controversy. And it does not appear "to a legal certainty" that the claims of at least some of the individual growers and dealers will not come to that amount in view of the substantial annual sales volume of Washington apples in North Carolina (over $2 million) and the continuing nature of the statute's interference with the Washington apple industry, coupled with the evidence in the record that growers and dealers have suffered and will continue to suffer losses of various types from the operation of the challenged statute. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 . Pp. 346-348 3. The North Carolina statute violates the Commerce Clause by burdening and discriminating against the interstate sale of Washington apples. Pp. 348-354. (a) The statute raises the costs of doing business in the North Carolina market for Washington growers and dealers while leaving unaffected their North Carolina counterparts, who were still free to market apples under the federal grade or none at all. Pp. 350-351. (b) The statute strips the Washington apple industry of the competitive and economic advantages it has earned for itself by an expensive, stringent mandatory state inspection and grading system that exceeds federal requirements. By requiring Washington apples to be sold under the inferior grades of their federal counterparts, the North Carolina statute offers the North Carolina apple industry the very sort of protection against out-of-state competition that the Commerce Clause was designed to prohibit. Pp. 351-352. [432 U.S. 333, 335] (c) Even if the statute was not intended to be discriminatory and was enacted for the declared purpose of protecting consumers from deception and fraud because of the multiplicity of state grades, the statute does remarkably little to further that goal, at least with respect to Washington apples and grades, for it permits marketing of apples in closed containers under no grades at all and does nothing to purify the flow of information at the retail level. Moreover, Washington grades could not have led to the type of deception at which the statute was assertedly aimed, since those grades equal or surpass the comparable federal standards. Pp. 352-354. (d) Nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. P. 354. 408 F. Supp. 857, affirmed. BURGER, C. J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the case. John R. Jordan, Jr., argued the cause for appellants. With him on the brief were Rufus L. Edmisten, Attorney General of North Carolina, and Millard R. Rich, Jr., Deputy Attorney General. Slade Gorton, Attorney General of Washington, argued the cause for appellee. With him on the brief were Edward B. Mackie, Deputy Attorney General, and James Arneil, Special Assistant Attorney General. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. In 1973, North Carolina enacted a statute which required, inter alia, all closed containers of apples sold, offered for sale, or shipped into the State to bear "no grade other than the applicable U.S. grade or standard." N.C. Gen. Stat. 106-189.1 (1973). In an action brought by the Washington State Apple Advertising Commission, a three-judge Federal District Court invalidated the statute insofar as it prohibited the display of Washington State apple grades on the ground that it unconstitutionally discriminated against interstate commerce. [432 U.S. 333, 336] The specific questions presented on appeal are (a) whether the Commission had standing to bring this action; (b) if so, whether it satisfied the jurisdictional-amount requirement of 28 U.S.C. 1331; 1 and (c) whether the challenged North Carolina statute constitutes an unconstitutional burden on interstate commerce. (1) Washington State is the Nation's largest producer of apples, its crops accounting for approximately 30% of all apples grown domestically and nearly half of all apples shipped in closed containers in interstate commerce. As might be expected, the production and sale of apples on this scale is a multimillion dollar enterprise which plays a significant role in Washington's economy. Because of the importance of the apple industry to the State, its legislature has undertaken to protect and enhance the reputation of Washington apples by establishing a stringent, mandatory inspection program, administered by the State's Department of Agriculture, which requires all apples shipped in interstate commerce to be tested under strict quality standards and graded accordingly. In all cases, the Washington State grades, which have gained substantial acceptance in the trade, are the equivalent of, or superior to, the comparable grades and standards adopted by the United States Department of Agriculture (USDA). Compliance with the Washington inspection scheme costs the State's growers approximately $1 million each year. In addition to the inspection program, the state legislature has sought to enhance the market for Washington apples through the creation of a state agency, the Washington State Apple Advertising Commission, charged with the statutory [432 U.S. 333, 337] duty of promoting and protecting the State's apple industry. The Commission itself is composed of 13 Washington apple growers and dealers who are nominated and elected within electoral districts by their fellow growers and dealers. Wash. Rev. Code 15.24.020, 15.24.030 (1974). Among its activities are the promotion of Washington apples in both domestic and foreign markets through advertising, market research and analysis, and public education, as well as scientific research into the uses, development, and improvement of apples. Its activities are financed entirely by assessments levied upon the apple industry, 15.24.100; in the year during which this litigation began, these assessments totaled approximately $1.75 million. The assessments, while initially fixed by statute, can be increased only upon the majority vote of the apple growers themselves. 15.24.090. In 1972, the North Carolina Board of Agriculture adopted an administrative regulation, unique in the 50 States, which in effect required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or a notice indicating no classification. State grades were expressly prohibited. 2 In addition to its obvious consequence - prohibiting the display of Washington State apple grades on containers of apples shipped into North Carolina, the regulation presented the Washington apple industry with a marketing problem of potentially nationwide significance. Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina, stamped with the applicable Washington State variety [432 U.S. 333, 338] and grade. It is the industry's practice to purchase these containers preprinted with the various apple varieties and grades, prior to harvest. After these containers are filled with apples of the appropriate type and grade, a substantial portion of them are placed in cold-storage warehouses where the grade labels identify the product and facilitate its handling. These apples are then shipped as needed throughout the year; after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country. Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina's unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i. e., repack apples to be shipped to North Carolina in containers bearing only the USDA grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less efficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina's lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State's expensive inspection and grading system which their customers had come to know and rely on over the 60-odd years of its existence. With these problems confronting the industry, the Washington State Apple Advertising Commission petitioned the North Carolina Board of Agriculture to amend its regulation to permit the display of state grades. An administrative hearing was held on the question but no relief was granted. [432 U.S. 333, 339] Indeed, North Carolina hardened its position shortly thereafter by enacting the regulation into law: "All apples sold, offered for sale or shipped into this State in closed containers shall bear on the container, bag or other receptacle, no grade other than the applicable U.S. grade or standard or the marking `unclassified,' `not graded' or `grade not determined.'" N.C. Gen. Stat. 106-189.1 (1973). Nonetheless, the Commission once again requested an exemption which would have permitted the Washington apple growers to display both the United States and the Washington State grades on their shipments to North Carolina. This request, too, was denied. Unsuccessful in its attempts to secure administrative relief, the Commission 3 instituted this action challenging the constitutionality of the statute in the United States District Court for the Eastern District of North Carolina. Its complaint, which invoked the District Court's jurisdiction under 28 U.S.C. 1331 and 1343, sought a declaration that the statute violated, inter alia, the Commerce Clause of the United States Constitution, Art. I, 8, cl. 3, insofar as it prohibited the display of Washington State grades, and prayed for a permanent injunction against its enforcement in this manner. A three-judge Federal District Court was convened pursuant to 28 U.S.C. 2281 and 2284 to consider the Commission's constitutional attack on the statute. After a hearing, the District Court granted the requested relief. 408 F. Supp. 857 (1976). At the outset, it held that the Commission had standing to challenge the statute both in its own right and on behalf of the Washington State growers and dealers, and that the $10,000 amount-in-controversy [432 U.S. 333, 340] requirement of 1331 had been satisfied. 4 408 F. Supp., at 858. Proceeding to the merits, the District Court found that the North Carolina statute, while neutral on its face, actually discriminated against Washington State growers and dealers in favor of their local counterparts. Id., at 860-861. This discrimination resulted from the fact that North Carolina, unlike Washington, had never established a grading and inspection system. Hence, the statute had no effect on the existing practices of North Carolina producers; they were still free to use the USDA grade or none at all. Washington growers and dealers, on the other hand, were forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market. The District Court then concluded that this discrimination against out-of-state competitors was not justified by the asserted local interest - the elimination of deception and confusion from the marketplace - arguably furthered by the statute. Indeed, it noted that the statute was "irrationally" drawn to accomplish that alleged goal since it permitted the marketing of closed containers of apples without any grade at all. Id., at 861-862. The court therefore held that the statute unconstitutionally discriminated against commerce, insofar as it affected the interstate shipment of Washington apples, 5 and enjoined its application. This appeal followed and we postponed further consideration of the question of jurisdiction to the hearing of the case on the [432 U.S. 333, 341] merits sub nom. Holshouser v. Washington State Apple Advertising Comm'n, 429 U.S. 814 (1976). (2) In this Court, as before, the North Carolina officials vigorously contest the Washington Commission's standing to prosecute this action, either in its own right, or on behalf of that State's apple industry which it purports to represent. At the outset, appellants maintain that the Commission lacks the "personal stake" in the outcome of this litigation essential to its invocation of federal-court jurisdiction. Baker v. Carr, 369 U.S. 186, 204 (1962). The Commission, they point out, is a state agency, not itself engaged in the production and sale of Washington apples or their shipment into North Carolina. Rather, its North Carolina activities are limited to the promotion of Washington apples in that market through advertising. 6 Appellants contend that the challenged statute has no impact on that activity since it prohibits only the display of state apple grades on closed containers of apples. Indeed, since the statute imposed no restrictions on the advertisement of Washington apples or grades other than the labeling ban, which affects only those parties actually engaged in the apple trade, the Commission is said to be free to carry on the same activities that it engaged in prior to the regulatory program. Appellants therefore argue that the Commission suffers no injury, economic or otherwise, from the statute's operation, and, as a result, cannot make out the "case or controversy" between itself and the appellants needed to establish standing in the constitutional sense. E. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 260 -264 (1977); Warth v. Seldin, 422 U.S. 490, 498 -499 (1975). Moreover, appellants assert, the Commission cannot rely on [432 U.S. 333, 342] the injuries which the statute allegedly inflicts individually or collectively on Washington apple growers and dealers in order to confer standing on itself. Those growers and dealers, appellants argue, are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute's operation. In any event, appellants contend that the Commission is not a proper representative of industry interests. Although this Court has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity, e. g., Warth v. Seldin, supra, at 511; National Motor Freight Assn. v. United States, 372 U.S. 246 (1963), the Commission is not a traditional voluntary membership organization such as a trade association, for it has no members at all. Thus, since the Commission has no members whose claims it might raise, and since it has suffered no "distinct and palpable injury" to itself, it can assert no more than an abstract concern for the well-being of the Washington apple industry as the basis for its standing. That type of interest, appellants argue, cannot "substitute for the concrete injury required by Art. III." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976). If the Commission were a voluntary membership organization - a typical trade association - its standing to bring this action as the representative of its constituents would be clear under prior decisions of this court. In Warth v. Seldin, supra, we stated: "Even in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . So long as this can be established, and so long as the nature of the claim and [432 U.S. 333, 343] of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." 422 U.S., at 511 . See also Simon v. Eastern Ky. Welfare Rights Org., supra, at 39-40; Meek v. Pittenger, 421 U.S. 349, 355 -356, n. 5 (1975); Sierra Club v. Morton, 405 U.S. 727, 739 (1972); National Motor Freight Assn. v. United States, supra. We went on in Warth to elaborate on the type of relief that an association could properly pursue on behalf of its members: "[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind." 422 U.S. at 515. Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The prerequisites to "associational standing" described in Warth are clearly present here. The Commission's complaint alleged, and the District Court found as a fact, that the North Carolina statute had caused some Washington apple growers and dealers (a) to obliterate Washington State grades from the [432 U.S. 333, 344] large volume of closed containers destined for the North Carolina market at a cost ranging from 5 to 15 cents per carton; (b) to abandon the use of preprinted containers, thus diminishing the efficiency of their marketing operations; or (c) to lose accounts in North Carolina. Such injuries are direct and sufficient to establish the requisite "case or controversy" between Washington apple producers and appellants. Moreover, the Commission's attempt to remedy these injuries and to secure the industry's right to publicize its grading system is central to the Commission's purpose of protecting and enhancing the market for Washington apples. Finally, neither the interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof and both are thus properly resolved in a group context. The only question presented, therefore, is whether, on this record, the Commission's status as a state agency, rather than a traditional voluntary membership organization, precludes it from asserting the claims of the Washington apple growers and dealers who form its constituency. We think not. The Commission, while admittedly a state agency, for all practical purposes performs the functions of a traditional trade association representing the Washington apple industry. As previously noted, its purpose is the protection and promotion of the Washington apple industry; and, in the pursuit of that end, it has engaged in advertising, market research and analysis, public education campaigns, and scientific research. It thus serves a specialized segment of the State's economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation. Moreover, while the apple growers and dealers are not "members" of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, [432 U.S. 333, 345] through assessments levied upon them. In a very real sense, therefore, the Commission represents the State's growers and dealers and provides the means by which they express their collective views and protect their collective interests. Nor do we find it significant in determining whether the Commission may properly represent its constituency that "membership" is "compelled" in the form of mandatory assessments. Membership in a union, or its equivalent, is often required. Likewise, membership in a bar association, which may also be an agency of the State, is often a prerequisite to the practice of law. Yet in neither instance would it be reasonable to suggest that such an organization lacked standing to assert the claims of its constituents. Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation. The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as "Washington Apples." In the event the North Carolina statute results in a contraction of the market for Washington apples or prevents any market expansion that might otherwise occur, it could reduce the amount of the assessments due the Commission and used to support its activities. This financial nexus between the interests of the Commission and its constituents coalesces with the other factors noted above to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204 ; see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 -460 (1958). Under the circumstances presented here, it would exalt form over substance to differentiate between the Washington Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. We therefore agree with the District Court that the Commission has standing to bring this action in a representational capacity. [432 U.S. 333, 346] (3) We turn next to the appellants' claim that the Commission has failed to satisfy the $10,000 amount-in-controversy requirement of 28 U.S.C. 1331. As to this, the appellants maintain that the Commission itself has not demonstrated that its right to be free of the restrictions imposed by the challenged statute is worth more than the requisite $10,000. Indeed, they argue that the Commission has made no real effort to do so, but has instead attempted to rely on the actual and threatened injury to the individual Washington apple growers and dealers upon whom the statute has a direct impact. This, they claim, it cannot do, for those growers and dealers are not parties to this litigation. Alternatively, appellants argue that even if the Commission can properly rely on the claims of the individual growers and dealers, it cannot establish the required jurisdictional amount without aggregating those claims. Such aggregation, they argue, is impermissible under this Court's decisions in Snyder v. Harris, 394 U.S. 332 (1969), and Zahn v. International Paper Co., 414 U.S. 291 (1973). Our determination that the Commission has standing to assert the rights of the individual growers and dealers in a representational capacity disposes of the appellants' first contention. Obviously, if the Commission has standing to litigate the claims of its constituents, it may also rely on them to meet the requisite amount in controversy. Hence, we proceed to the question of whether those claims were sufficient to confer subject-matter jurisdiction on the District Court. In resolving this issue, we have found it unnecessary to reach the aggregation question posed by the appellants for it does not appear to us "to a legal certainty" that the claims of at least some of the individual growers and dealers will not amount to the required $10,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288 -289 (1938). [432 U.S. 333, 347] In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. E. g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 181 (1936); Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 126 (1915); Hunt v. New York Cotton Exchange, 205 U.S. 322, 336 (1907); 1 J. Moore, Federal Practice §§ 0.95, 0.96 (2d ed. 1975); C. Wright, A Miller, & E. Cooper, Federal Practice & Procedure 3708 (1976). Here, that object is the right of the individual Washington apple growers and dealers to conduct their business affairs in the North Carolina market free from the interference of the challenged statute. The value of that right is measured by the losses that will follow from the statute's enforcement. McNutt, supra, at 181; Buck v. Gallagher, 307 U.S. 95, 100 (1939); Kroger Grocery & Baking Co. v. Lutz, 299 U.S. 300, 301 (1936); Packard v. Banton, 264 U.S. 140, 142 (1924). Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court's finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. New York, 340 F. Supp. 1120 [432 U.S. 333, 348] (SDNY), aff'd, 468 F.2d 624 (CA2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F.2d 953, 956 (CA3 1974), rev'd on other grounds, 424 U.S. 828 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily. Both the substantial volume of sales in North Carolina - the record demonstrates that in 1974 alone, such sales were in excess of $2 million 7 - and the continuing nature of the statute's interference with the business affairs of the Commission's constituents, preclude our saying "to a legal certainty," on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. That is sufficient to sustain the District Court's jurisdiction. The requirements of 1331 are therefore met. (4) We turn finally to the appellants' claim that the District Court erred in holding that the North Carolina statute violated the Commerce Clause insofar as it prohibited the display of Washington State grades on closed containers of apples shipped into the State. Appellants do not really contest the District Court's determination that the challenged statute burdened the Washington apple industry by increasing its [432 U.S. 333, 349] costs of doing business in the North Carolina market and causing it to lose accounts there. Rather, they maintain that any such burdens on the interstate sale of Washington apples were far outweighed by the local benefits flowing from what they contend was a valid exercise of North Carolina's inherent police powers designed to protect its citizenry from fraud and deception in the marketing of apples. Prior to the statute's enactment, appellants point out, apples from 13 different States were shipped into North Carolina for sale. Seven of those States, including the State of Washington, had their own grading systems which, while differing in their standards, used similar descriptive labels (e. g., fancy, extra fancy, etc.). This multiplicity of inconsistent state grades, as the District Court itself found, posed dangers of deception and confusion not only in the North Carolina market, but in the Nation as a whole. The North Carolina statute, appellants claim, was enacted to eliminate this source of deception and confusion by replacing the numerous state grades with a single uniform standard. Moreover, it is contended that North Carolina sought to accomplish this goal of uniformity in an evenhanded manner as evidenced by the fact that its statute applies to all apples sold in closed containers in the State without regard to their point of origin. Nonetheless, appellants argue that the District Court gave "scant attention" to the obvious benefits flowing from the challenged legislation and to the long line of decisions from this Court holding that the States possess "broad powers" to protect local purchasers from fraud and deception in the marketing of foodstuffs. E. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935); Corn Products Refining Co. v. Eddy, 249 U.S. 427 (1919). As the appellants properly point out, not every exercise of state authority imposing some burden on the free flow of commerce is invalid. E. g., Great Atlantic & Pacific Tea Co. [432 U.S. 333, 350] v. Cottrell, 424 U.S. 366, 371 (1976); Freeman v. Hewit, 329 U.S. 249, 252 (1946). Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, e. g., Great Atlantic & Pacific Tea Co., supra, at 370-371; Freeman v. Hewit, supra, at 252; Cooley v. Board of Wardens, 12 How. 299 (1852), our opinions have long recognized that, "in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945). Moreover, as appellants correctly note, that "residuum" is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc., supra, at 146. By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted, "would mean that the Commerce Clause of itself imposes no limitations on state action . . . save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods." Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national "common market," we are confronted with the task of effecting an accommodation of the competing national and local interests. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Great Atlantic & Pacific Tea Co., supra, at 370-372. We turn to that task. As the District Court correctly found, the challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. This discrimination takes various forms. The first, and most [432 U.S. 333, 351] obvious, is the statute's consequence of raising the costs of doing business in the North Carolina market for Washington apple growers and dealers, while leaving those of their North Carolina counterparts unaffected. As previously noted, this disparate effect results from the fact that North Carolina apple producers, unlike their Washington competitors, were not forced to alter their marketing practices in order to comply with the statute. They were still free to market their wares under the USDA grade or none at all as they had done prior to the statute's enactment. Obviously, the increased costs imposed by the statute would tend to shield the local apple industry from the competition of Washington apple growers and dealers who are already at a competitive disadvantage because of their great distance from the North Carolina market. Second, the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. The record demonstrates that the Washington apple-grading system has gained nationwide acceptance in the apple trade. Indeed, it contains numerous affidavits from apple brokers and dealers located both inside and outside of North Carolina who state their preference, and that of their customers, for apples graded under the Washington, as opposed to the USDA, system because of the former's greater consistency, its emphasis on color, and its supporting mandatory inspections. Once again, the statute had no similar impact on the North Carolina apple industry and thus operated to its benefit. Third, by prohibiting Washington growers and dealers from marketing apples under their State's grades, the statute has a leveling effect which insidiously operates to the advantage of local apple producers. As noted earlier, the Washington State grades are equal or superior to the USDA grades in all corresponding categories. Hence, with free market forces at [432 U.S. 333, 352] work, Washington sellers would normally enjoy a distinct market advantage vis-a-vis local producers in those categories where the Washington grade is superior. However, because of the statute's operation, Washington apples which would otherwise qualify for and be sold under the superior Washington grades will now have to be marketed under their inferior USDA counterparts. Such "downgrading" offers the North Carolina apple industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit. At worst, it will have the effect of an embargo against those Washington apples in the superior grades as Washington dealers withhold them from the North Carolina market. At best, it will deprive Washington sellers of the market premium that such apples would otherwise command. Despite the statute's facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission's request for an exemption following the statute's passage in which he indicated that before he could support such an exemption, he would "want to have the sentiment from our apple producers since they were mainly responsible for this legislation being passed . . . ." App. 21 (emphasis added). Moreover, we find it somewhat suspect that North Carolina singled out only closed containers of apples, the very means by which apples are transported in commerce, to effectuate the statute's ostensible consumer protection purpose when apples are not generally sold at retail in their shipping containers. However, we need not ascribe an economic protection motive to the North Carolina Legislature to resolve this case; we conclude that the challenged statute cannot stand insofar as it prohibits the [432 U.S. 333, 353] display of Washington State grades even if enacted for the declared purpose of protecting consumers from deception and fraud in the marketplace. When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Dean Milk Co. v. Madison, 340 U.S., at 354 . See also Great Atlantic & Pacific Tea Co., 424 U.S., at 373 ; Pike v. Bruce Church, Inc., 397 U.S., at 142 ; Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 375 n. 9 (1964); Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 524 (1935). North Carolina has failed to sustain that burden on both scores. The several States unquestionably possess a substantial interest in protecting their citizens from confusion and deception in the marketing of foodstuffs, but the challenged statute does remarkably little to further that laudable goal at least with respect to Washington apples and grades. The statute, as already noted, permits the marketing of closed containers of apples under no grades at all. Such a result can hardly be thought to eliminate the problems of deception and confusion created by the multiplicity of differing state grades; indeed, it magnifies them by depriving purchasers of all information concerning the quality of the contents of closed apple containers. Moreover, although the statute is ostensibly a consumer protection measure, it directs its primary efforts, not at the consuming public at large, but at apple wholesalers and brokers who are the principal purchasers of closed containers of apples. And those individuals are presumably the most knowledgeable individuals in this area. Since the statute does nothing at all to purify the flow of information at the retail level, it does little to protect consumers against the problems it was designed to eliminate. Finally, we note that any potential [432 U.S. 333, 354] for confusion and deception created by the Washington grades 8 was not of the type that led to the statute's enactment. Since Washington grades are in all cases equal or superior to their USDA counterparts, they could only "deceive" or "confuse" a consumer to his benefit, hardly a harmful result. In addition, it appears that nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. For example, North Carolina could effectuate its goal by permitting out-of-state growers to utilize state grades only if they also marked their shipments with the applicable USDA label. In that case, the USDA grade would serve as a benchmark against which the consumer could evaluate the quality of the various state grades. If this alternative was for some reason inadequate to eradicate problems caused by state grades inferior to those adopted by the USDA, North Carolina might consider banning those state grades which, unlike Washington's, could not be demonstrated to be equal or superior to the corresponding USDA categories. Concededly, even in this latter instance, some potential for "confusion" might persist. However, it is the type of "confusion" that the national interest in the free flow of goods between the States demands be tolerated. 9 The judgment of the District Court is Affirmed. MR. JUSTICE REHNQUIST took no part in the consideration or decision of the case. Footnotes [Footnote 1 Section 1331 provides in pertinent part: "(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs . . . ." [Footnote 2 The North Carolina regulation, as amended, provides in pertinent part: "(6) Apple containers must show the applicable U.S. Grade on the principal display panel or marked `Unclassified,' `Not Graded,' or `Grade Not Determined.' State grades shall not be shown." 3-24.5 (6), Rules, Regulations, Definitions and Standards of the North Carolina Department of Agriculture. [Footnote 3 Under Washington law, the Commission is a corporation and is specifically granted the power to sue and be sued. Wash. Rev. Code 15.24.070 (8) (1974). [Footnote 4 In this regard, it adopted the ruling of the single District Judge who had previously denied appellants' motion to dismiss the complaint brought on the same grounds. App. 51-58. That judge had found it unnecessary to determine whether jurisdiction was also proper under 28 U.S.C. 1343 in view of his determination that jurisdiction had been established under 1331. App. 57 n. 2. [Footnote 5 As an alternative ground for its holding, the District Court found that the statute would have constituted an undue burden on commerce even if it had been neutral and nondiscriminatory in its impact. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). 408 F. Supp., at 862 n. 9. [Footnote 6 During 1974, the Commission spent in excess of $25,000 advertising Washington apples in the North Carolina market. Id., at 859. [Footnote 7 In addition, apples worth approximately 30 to 40 percent of that amount were transshipped into North Carolina in 1974 after direct shipment to apple brokers and wholesalers located in other States. [Footnote 8 Indeed, the District Court specifically indicated in its findings of fact that there had been no showing that the Washington State grades had caused any confusion in the North Carolina market. 408 F. Supp., at 859. [Footnote 9 Our conclusion in this regard necessarily rejects North Carolina's suggestion that the burdens on commerce imposed by the statute are justified on the ground that the standardization required by the statute serves the national interest in achieving uniformity in the grading and labeling of foodstuffs. [432 U.S. 333, 355]

liberal

public_entity

economic_activity

1961-081-01

United States Supreme Court ENOCHS v. WILLIAMS PACKING CO.(1962) No. 493 Argued: April 18, 1962Decided: May 28, 1962 Respondent, which is in the business of providing fishing trawlers to commercial fishermen, sued in a Federal District Court to enjoin the collection of social security and unemployment taxes claimed by petitioner to be past due. Although petitioner adduced evidence in support of his claim that there was an employment relationship, the District Court found that such taxes were not, in fact, payable and that their collection would destroy respondent's business; and it permanently enjoined their collection. Held: The suit for injunction was barred by 7421 (a) of the Internal Revenue Code of 1954, and a judgment sustaining the injunction is reversed. Miller v. Standard Nut Margarine Co., 284 U.S. 498 , distinguished. Pp. 1-8. 291 F.2d 402, reversed. Assistant Attorney General Oberdorfer argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Acting Assistant Attorney General Jones, Meyer Rothwacks and George F. Lynch. [370 U.S. 1, 2] George E. Morse argued the cause for respondent. With him on the briefs was W. E. Morse. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. Fearing that the District Director of Internal Revenue for Mississippi would attempt to collect allegedly past due social security and unemployment taxes for the years 1953, 1954 and 1955, respondent, in late 1957 brought suit in the District Court, maintaining that it was not liable for the exactions and seeking an injunction prohibiting their collection. The District Director, petitioner herein, made no objection to the issuance of a preliminary restraining order but resisted a permanent injunction, asserting that the provisions of 7421 (a) of the Internal Revenue Code of 1954 barred any such injunctive proceeding. That section provides: "Except as provided in sections 6212 (a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." The exception for Tax Court proceedings created by 6212 (a) and (c) and 6213 (a) was not applicable because that body is without jurisdiction over taxes of the sort here in issue. Nevertheless, on July 14, 1959, the court, relying upon Miller v. Standard Nut Margarine Co., 284 U.S. 498 , permanently enjoined collection of the taxes on the ground that they were not, in fact, payable and because collection would destroy respondent's business. 176 F. Supp. 168. On June 14, 1961, the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 291 F.2d 402. We granted certiorari to determine whether the case came within the scope of this Court's holding in Nut Margarine which indicated that 7421 (a) was not, in the "special and extraordinary facts and circumstances" [370 U.S. 1, 3] of that case, 1 intended to apply. 2 368 U.S. 937 . Respondent corporation (hereinafter referred to as Williams) is engaged in the business of providing trawlers to fishermen who take shrimp, oysters and fish off the Louisiana and Mississippi coasts. It is the Government's position that these fishermen are the corporation's employees within the meaning of 1426 (d) (2) and 1607 (i) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.), and 3121 (d) (2) and 3306 (i) of the Internal Revenue Code of 1954. These sections specifically adopt the common-law test for ascertaining the existence of the employer-employee relationship. As stated in United States v. Silk, 331 U.S. 704, 716 , "degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required . . . are important for decision [under these statutes]." If, under the involved circumstances of this case, the fishermen were employees, respondent Williams is admittedly liable for social security and unemployment taxes for the years in question. 3 The following facts, material to the question of the existence of the employment relationship, were established. Williams provided its boats to captains which it selected; they employed their own crews and could fire them at will, but the relationship between respondent corporation [370 U.S. 1, 4] and the fishermen was not ordinarily of short duration. The catch was generally sold to Williams which in turn resold it to the DeJean Packing Co., a partnership closely allied to Williams both by reason of integrated operation and substantially identical ownership. The proceeds, after the deduction of expenses, were divided among the captain, the crew and the boat. Williams received an additional share if it supplied the nets and rigging. It extended credit to the captains and made it possible for them to obtain credit elsewhere, and if a trip was unsuccessful and if the captain or crew members no longer continued to operate a boat, Williams absorbed the loss. With respect to the existence of a recognized right of control by the employer, as might be expected, the testimony was in conflict. Petitioner introduced evidence to show that Williams could effectively refuse ice to boats and thus determine whether they would go out, that the boats' times of return were sometimes directed by the respondent corporation, that it could dictate the nature of the catch, and that permission was needed to sell the catch to someone other than respondent. And petitioner pointed out that both respondent and its fishermen had for other purposes represented that an employer-employee relationship existed. 4 On the other hand, the District Court here found, and the respondent now asserts, that the corporation was wholly without any right of control. [370 U.S. 1, 5] Attempting to establish a basis for equitable jurisdiction, the corporation maintains that it will be thrown into bankruptcy if required to pay the entire assessment of $41, 568.57. It is undisputed that Williams itself is without available funds in this amount, but the Government suggests that respondent has denuded itself of assets in anticipation of its tax liability, that DeJean's assets should be considered as belonging to respondent, and that, in any event, the respondent corporation may pay the assessment for a single quarter and then sue for a refund. The object of 7421 (a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. In Miller v. Standard Nut Margarine Co., supra, this Court was confronted with the question whether a manufacturer of "Southern Nut Product" could enjoin the collection of federal oleomargarine taxes on its goods. Prior to the assessment in issue three lower federal court cases had held that similar products were nontaxable and, by letter, the collector had informed the manufacturer that "Southern Nut Product" was not subject to the tax. This Court found that "[a] valid oleomargarine tax could by no legal possibility have been assessed against . . . [the manufacturer], and therefore the reasons underlying . . . [ 7421 (a)] apply, if at all, with little force." 5 [370 U.S. 1, 6] Noting that collection of the tax "would destroy its business, ruin it financially and inflict loss for which it would have no remedy at law," the Court held that an injunction could properly issue. Id., at 510-511. The courts below seem to have found that Nut Margarine decides that 7421 (a) does not bar suit for an injunction against the collection of taxes not due if the legal remedy is inadequate. We cannot agree. The enactment of the comparable Tax Injunction Act of 1937, 50 Stat. 738, now, as amended, 28 U.S.C. 1341, forbidding the federal courts to entertain suits to enjoin collection of state taxes "where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State," throws light on the proper construction to be given 7421 (a). It indicates that if Congress had desired to make the availability of the injunctive remedy against the collection of federal taxes not lawfully due depend upon the adequacy of the legal remedy, it would have said so explicitly. Its failure to do so shows that such a suit may not be entertained merely because collection would cause an irreparable injury, such as the ruination of the taxpayer's enterprise. This is not to say, of course, that inadequacy of the legal remedy need not be established if 7421 (a) is inapplicable; indeed, the contrary rule is well established. See, e. g., Matthews v. Rodgers, 284 U.S. 521 ; Miller v. Standard Nut Margarine Co., supra; Dows v. Chicago, 11 Wall. 108. However, since we conclude that 7421 (a) bars any suit for an injunction in this case, we need not determine whether [370 U.S. 1, 7] the taxpayer would suffer irreparable injury if collection were effected. The manifest purpose of 7421 (a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. 6 Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in "the guise of a tax." Id., at 509. We believe that the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed. To require more than good faith on the part of the Government would unduly interfere with a collateral [370 U.S. 1, 8] objective of the Act - protection of the collector from litigation pending a suit for refund. And to permit even the maintenance of a suit in which an injunction could issue only after the taxpayer's nonliability had been conclusively established might "in every practical sense operate to suspend collection of the . . . taxes until the litigation is ended." Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299 . Thus, in general, the Act prohibits suits for injunctions barring the collection of federal taxes when the collecting officers have made the assessment and claim that it is valid. Snyder v. Marks, 109 U.S. 189, 194 . The record before us clearly reveals that the Government's claim of liability was not without foundation. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss the complaint. Reversed. MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. Footnotes [Footnote 1 284 U.S., at 511 . [Footnote 2 See also Hill v. Wallace, 259 U.S. 44, 62 ; Allen v. Regents, 304 U.S. 439, 449 . [Footnote 3 See 1410, 1939 Code, and 3111, 1954 Code (social security taxes), 1600, 1939 Code, and 3301, 1954 Code (unemployment taxes). Presumably the exceptions for fishing operations created by 1426 (b) (15) and 1607 (c) (17) of the 1939 Code and by 3306 (c) (17) of the 1954 Code do not apply because the vessels here involved were of more than 10 net tons. [Footnote 4 For instance, during World War II, respondent represented that the fishermen were employees for the purpose of securing occupational deferments for them. And in the course of a prior antitrust litigation, instituted against a union to which respondent's fishermen belonged, the union defended against the charge of price fixing on the ground that its members were employees. The Government, curiously, successfully maintained that an employment relationship did not exist. See Gulf Coast Shrimpers & Oystermans Assn. v. United States, 236 F.2d 658 (C. A. 5th Cir. 1956). [Footnote 5 Id., at 510. The product in issue was made only with vegetable oils. The pertinent taxing statute defined "oleomargarine" as "[a]ll substances heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef-fat, suet, lard, lard-oil, vegetable-oil annotto [a coloring material], and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter." 24 Stat. 209. The assessment was based on the argument that the statutory [370 U.S. 1, 6] reference to "vegetable-oil annotto" was meant to bring products made with vegetable oil within the definition. The Court held that the Act was obviously designed to include only vegetable-oil coloring used in conjunction with animal-fat products; in fact, after the tax year involved, the statute had been amended to bring vegetable-oil products within the definition. See 46 Stat. 1022. [Footnote 6 Compare S. Rep. No. 1035, 75th Cong., 1st Sess. 2, concerning 28 U.S.C. 1341: "The existing practice of the Federal courts in entertaining tax-injunction suits against State officers makes it possible for foreign corporations doing business in such States to withhold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy." [370 U.S. 1, 9]

liberal

other

federal_taxation

1990-034-01

United States Supreme Court LOZADA v. DEEDS(1991) No. 90-5393 Argued: Decided: February 19, 1991 Petitioner Lozada failed to file a direct appeal from his Nevada state court convictions. After exhausting state postconviction remedies, he filed a petition for a writ of habeas corpus in the Federal District Court, alleging that he had been deprived of the opportunity to appeal his convictions by the ineffective assistance of his counsel, who, inter alia, never told him of his right to appeal. The court dismissed the petition, holding that Lozada's allegations failed to show prejudice under the standard set forth in Strickland v. Washington, 466 U.S. 668 , because Lozada had not demonstrated that an appeal might have succeeded. Subsequently, both the District Court and the Court of Appeals denied Lozada a certificate of probable cause to appeal the dismissal of his petition. Held: The Court of Appeals erred in denying Lozada a certificate of probable cause because, under the standards set forth in Barefoot v. Estelle, 463 U.S. 880, 893 , for issuance of a certificate, he made a substantial showing that he was denied the right to effective assistance of counsel. The issue of prejudice could be resolved in a different manner than the one followed by the District Court. At least two Courts of Appeals have presumed prejudice by the denial of the right to appeal, yet the Court of Appeals in the instant case neither cited nor analyzed this line of authority. Certiorari granted; reversed and remanded. PER CURIAM. Petitioner Jose M. Lozada was convicted in Nevada state court in 1987 of four crimes arising out of the possession and sale of a controlled substance in violation of the laws of that State. Lozada filed no direct appeal. After exhausting state postconviction remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Nevada. Lozada contended that ineffective assistance of counsel had deprived him of the opportunity to appeal his state court convictions. In particular, he alleged his attorney failed to inform him of his right to appeal, of the procedures [498 U.S. 430, 431] and time limitations for an appeal, and of his right to appointed counsel. The habeas petition alleged further that the attorney had failed to file a notice of appeal or to insure that Lozada received appointed counsel on appeal. It also implied that Lozada had been misled when the attorney told Lozada's sister that his case had been forwarded to the public defender's office. Without holding a hearing on Lozada's claims, a federal magistrate recommended that the petition be dismissed. The District Court agreed and dismissed the petition, rejecting the ineffective assistance claim on the ground that petitioner's allegations failed to satisfy the standard set forth in our decision in Strickland v. Washington, 466 U.S. 668 (1984). The court acknowledged that trial counsel's alleged failure to inform petitioner of his right to appeal might constitute conduct below constitutional standards. It reasoned, however, that Lozada had not indicated what issues he would have raised on appeal, and had not demonstrated that the appeal might have succeeded. As a result, the court concluded that petitioner had not shown prejudice under the Strickland test. The District Court later denied Lozada a certificate of probable cause to appeal the denial of habeas relief, see 28 U.S.C. 2253, again stating that Lozada had failed to show any prejudice from counsel's alleged errors. The United States Court of Appeals for the Ninth Circuit also denied a certificate of probable cause in a one-sentence order. Lozada filed the instant petition for a writ of certiorari, which we now grant along with his motion for leave to proceed in forma pauperis. In Barefoot v. Estelle, 463 U.S. 880, 892 -893 (1983), we delineated the standards for issuance of a certificate of probable cause. We agreed with the courts of appeals that had ruled that "a certificate of probable cause requires petitioner to make a `substantial showing of the denial of [a] federal right.'" Id., at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270, n. 2 (CA5 1971), cert. denied, 406 U.S. 925 (1972)). [498 U.S. 430, 432] We also quoted with approval Gordon v. Willis, 516 F.Supp. 911, 913 (ND Ga. 1980) (citing United States ex rel. Jones v. Richmond, 245 F.2d 234 (CA2), cert. denied, 355 U.S. 846 (1957)), which explained that, in order to make a substantial showing of the denial of a federal right, a petitioner who has been denied relief in a district court "`must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are "adequate to deserve encouragement to proceed further."'" 463 U.S., at 893 , n. 4. We conclude that the Court of Appeals erred in denying Lozada a certificate of probable cause because, under the standards set forth in Barefoot, Lozada made a substantial showing that he was denied the right to effective assistance of counsel. The District Court rested its analysis on the prejudice prong of the Strickland inquiry, and that was presumably the basis for the Court of Appeals' decision to deny a certificate of probable cause. We believe the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner than the one followed by the District Court. Since Strickland, at least two Courts of Appeals have presumed prejudice in this situation. See Abels v. Kaiser, 913 F.2d 821, 823 (CA10 1990); Estes v. United States, 883 F.2d 645, 649 (CA8 1989); see also Rodriquez v. United States, 395 U.S. 327, 330 (1969). The order of the Court of Appeals did not cite or analyze this line of authority as reflected in Estes, which had been decided before the Ninth Circuit issued its ruling. The judgment is reversed and the case remanded for further proceedings consistent with this opinion. It is so ordered. CHIEF JUSTICE REHNQUIST and JUSTICE O'CONNOR would deny the petition for a writ of certiorari. [498 U.S. 430, 433]

liberal

public_entity

criminal_procedure

1987-122-01

United States Supreme Court INS v. PANGILINAN(1988) No. 86-1992 Argued: February 24, 1988Decided: June 17, 1988 Respondents, 16 Filipino nationals who served with the United States Armed Forces during World War II, seek United States citizenship pursuant to 701 through 705 of the Nationality Act of 1940, as amended in 1942. Under 702 of the Act, the Commissioner of Immigration and Naturalization was authorized to designate representatives to receive petitions, conduct hearings, and grant naturalization outside the United States. In August 1945, the American Vice Consul in Manila was designated pursuant to 702 to naturalize aliens. The Philippine Government, however, expressed its concern that a mass migration of newly naturalized veterans would drain the soon-to-be independent country's manpower, and so the naturalization officer's authority was revoked for a 9-month period between October 1945 and August 1946. Respondents would have been eligible for citizenship under the provisions of the 1940 Act if they had filed naturalization applications before the Act expired on December 31, 1946, but did not do so. More than 30 years later, they petitioned for naturalization, claiming that the 9-month absence of a 702 naturalization officer violated the 1940 Act and deprived them of rights secured by the Fifth Amendment. The naturalization examiner, in all of the cases consolidated here, recommended against naturalization, and the District Courts rejected the naturalization petitions. On respondents' appeals (some of which were consolidated), heard in two cases by different Ninth Circuit panels, the Court of Appeals ultimately held that the revocation of the Vice Consul's naturalization authority violated what it characterized as the 1940 Act's mandatory language, and that the naturalization of respondents was an appropriate equitable remedy. Held: 1. Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of the limitations imposed by Congress in the exercise of its exclusive constitutional authority [486 U.S. 875, 876] over naturalization. Since respondents have no current statutory right to citizenship under the expired provisions of the 1940 Act, the Ninth Circuit lacked authority to grant the petitions for naturalization. The reasoning of INS v. Hibi, 414 U.S. 5 - which held that the same official acts as those alleged here did not give rise to an estoppel that prevented the Government from invoking the December 31, 1946, cutoff date in the 1940 Act - suggests the same result as to the "equitable remedy" theory in this case. Even assuming that, in reviewing naturalization petitions, federal courts sit as courts of equity, such courts can no more disregard statutory provisions than can courts of law. Congress has given the power to the federal courts to make someone a citizen as a specific function to be performed in strict compliance with the terms of 8 U.S.C. 1421(d), which states that a person may be naturalized "in the manner and under the conditions prescribed in this subchapter, and not otherwise." Pp. 882-885. 2. Assuming that respondents can properly invoke the Constitution's protections, and granting that they had statutory entitlements to naturalization, there is no merit to their contention that the revocation of the Vice Consul's naturalization authority deprived them of their rights under the Due Process Clause of the Fifth Amendment and under its equal protection component. Respondents were not entitled to individualized notice of any statutory rights and to the continuous presence of a naturalization officer in the Philippines from October 1945 until July 1946. Moreover, the historical record does not support the contention that the actions at issue here were motivated by any racial animus. Pp. 885-886. 3. There is no merit to the separate arguments of respondents Litonjua and Manzano, including the argument that the Government did not introduce any evidence in their cases concerning the historical events at issue. It is well settled that the burden is on the alien applicant to establish his eligibility for citizenship. Pp. 886-887. 796 F.2d 1091, reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, MARSHALL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., concurred in the result. KENNEDY, J., took no part in the consideration or decision of the cases. [Footnote * Together with No. 86-2019, Immigration and Naturalization Service v. Manzano, also on certiorari to the same court. Robert H. Klonoff argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marshall Tamor Golding. [486 U.S. 875, 877] Donald L. Ungar argued the cause for respondents. With him on the brief for respondent Pangilinan et al. were Robert A. Mautino, Bill Ong Hing, and Susan Lydon. Robert A. Mautino filed briefs for respondents Litonjua and Manzano. JUSTICE SCALIA delivered the opinion of the Court. The respondents, 16 Filipino nationals who served with the United States Armed Forces during World War II, claim they are entitled to apply for and receive American citizenship under a special immigration statute that expired over 40 years ago, 701 to 705 of the Nationality Act of 1940, Ch. 876, 54 Stat. 1137, as amended by the Second War Powers Act of 1942, 1001, Ch. 199, 56 Stat. 182, 8 U.S.C. 1001 to 1005 (1940 ed., Supp. V) (1940 Act). In the decisions below 1 the Ninth Circuit has, for the third time, ordered naturalization under that expired provision. See Mendoza v. United States, 672 F.2d 1320 (CA9 1982), rev'd, 464 U.S. 154 (1984); INS v. Hibi, 475 F.2d 7 (CA9), rev'd, 414 U.S. 5 (1973). In part because the decision below was in direct conflict with the Second Circuit's decision in Olegario v. United States, 629 F.2d 204 (CA2 1980), cert. denied, 450 U.S. 980 (1981), we granted certiorari. I A In March 1942, Congress amended the immigration laws to make American citizenship more readily available to aliens who served honorably in the United States Armed Forces during World War II. As amended at that time, 701 of the 1940 Nationality Act exempted those aliens from such naturalization requirements as five years of residency in the [486 U.S. 875, 878] United States and proficiency in the English language. 2 Section 702 authorized representatives designated by the Commissioner of Immigration and Naturalization to receive petitions, conduct hearings, and grant naturalization outside the United States. 3 And 705 authorized the Commissioner, with the approval of the Attorney General, to make such rules [486 U.S. 875, 879] and regulations as were necessary to carry into effect the provisions of 701 and 702. 4 Over the next three years, approximately 7,000 Filipino soldiers were naturalized as American citizens in places outside the Philippine Islands (which were occupied during that entire period by Japan). Most of these were naturalized by courts in this country, but at least 1,000 others were naturalized by immigration officials appointed under 702, traveling from post to post on rotation throughout England, Iceland, North Africa, and the islands of the Pacific. See Hibi, 414 U.S., at 10 (Douglas, J., dissenting). After the Philippines were liberated from Japanese occupation in August 1945, George Ennis, the American Vice Consul in Manila, was designated to naturalize aliens pursuant to the 1940 Act. Almost immediately after that, the Philippine Government began to express its concern that a mass migration of newly naturalized veterans would drain the country of essential manpower, undermining postwar reconstruction efforts in the soon-to-be independent country. Accordingly, on September 13, 1945, the Commissioner recommended to Attorney General Clark that Vice Consul Ennis' naturalization authority be revoked. 5 On October 26, 1945, Ennis was informed [486 U.S. 875, 880] of that revocation. For the next nine months no official with 702 authority to receive and act upon petitions for naturalization was present in the Philippines, the Immigration and Naturalization Service (INS) apparently taking the position that appointment of such an official was authorized but not mandated. Not until August 1946 did the INS designate a new 702 official for the Philippines, who naturalized approximately 4,000 Filipinos before the December 31, 1946, expiration date of the 1940 Act. B Attorney General Clark's revocation of Vice Consul Ennis' naturalization authority during those nine months of 1945 and 1946 has led to a stream of litigation involving efforts by Filipino veterans to obtain naturalization under the expired 1940 Act. In the suits we have before us here, all of the respondents except Mario Valderrama Litonjua and Bonifacio Lorenzana Manzano filed their petitions in the United States District Court for the Northern District of California. The INS has stipulated that all of these 14 respondents (the Pangilinan respondents) were eligible for naturalization under the 1940 Act and were present in the Philippines during the period from October 1945 to August 1946, though they had not taken affirmative steps to be naturalized before the cutoff date. The naturalization examiner who handled these cases recommended against naturalization, [486 U.S. 875, 881] and the District Court decided against naturalization, relying on the Second Circuit's decision in Olegario. The naturalization petitions were consolidated for purposes of appeal to the Ninth Circuit. Respondent Litonjua's petition for naturalization was filed in the United States District Court for the Southern District of California. Litonjua had served as a member of the United States Navy from May 1941 to April 1946, but had made no effort to apply for naturalization while on active duty. He made preliminary efforts to obtain citizenship while working as a civilian employee of the United States Army in Seattle, Washington, after his discharge, but he did not complete the petition process before the December 31, 1946, cutoff date. The naturalization examiner recommended against naturalization, and the District Court concurred, for reasons similar to those adopted by the District Court in Pangilinan. Respondent Manzano also petitioned for naturalization in the Southern District of California. His situation was the same as that of the Pangilinan respondents, except that he claims that in July 1946, after completing his military service, he specifically inquired at the American Embassy in the Philippines about the possibility of obtaining citizenship but was told there was no longer anyone there to assist him. The District Court, following the recommendation of the naturalization examiner, denied the petition for reasons similar to those adopted by the District Courts in Pangilinan and Litonjua. The appeals of the Pangilinan respondents and Litonjua were filed in 1980 and 1981 and were consolidated by the Court of Appeals (No. 86-1992). Manzano's appeal (No. 86-2019) was filed later and assigned to a different panel. The Ninth Circuit initially decided the Pangilinan-Litonjua consolidated cases by relying on the collateral-estoppel theory of its Mendoza decision, which had not yet been reversed by this Court. We vacated that judgment in light of our ruling [486 U.S. 875, 882] in Mendoza. INS v. Litonjua, 465 U.S. 1001 (1984), vacating and remanding Barretto v. United States, 694 F.2d 603 (CA9 1982). On remand, the Ninth Circuit held that the revocation of Vice Consul Ennis' naturalization authority violated what it characterized as the mandatory language of 702 and 705 of the 1940 Act, and that the naturalization of the respondents was an appropriate equitable remedy. Pangilinan v. INS, 796 F.2d 1091 (CA9 1986). After this decision was announced, the panel in No. 86-2019 reversed and remanded to the District Court for reconsideration in light of the Pangilinan decision, characterizing the two cases as nearly identical. In 86-1992, the INS' petition for rehearing with suggestion for rehearing en banc was denied, with Judge Kozinski (writing for himself and seven others) dissenting. Pangilinan v. INS, 809 F.2d 1449 (CA9 1987). We granted the INS' petition for a writ of certiorari. 484 U.S. 814 (1987). II A Article I, 8, cl. 4, of the Constitution provides: "The Congress shall have Power . . . [t]o establish an uniform Rule of Naturalization . . . ." Sections 701, 702, and 705 of the amended 1940 Act, set forth in the margin above, constitute a complete description of the extent of the liberalized naturalization rights conferred under that exclusive constitutional authority in 1942. Section 701 explicitly limits the benefits to those who filed petitions no later than December 31, 1946. Moreover, Congress has again exercised its exclusive constitutional power to provide that any petition for naturalization filed on or after September 26, 1961, will be heard and determined under the 1952 Nationality Act, as amended. See 310(e), 75 Stat. 656, 8 U.S.C. 1421(e). Respondents concede that they are not entitled to be naturalized under that law. Brief for Respondent Pangilinan in Opposition 12-13. Since all the petitions for naturalization in this case were filed after December 31, 1946, and even after September [486 U.S. 875, 883] 26, 1961, it is incontestable (and uncontested) that respondents have no statutory right to citizenship. In INS v. Hibi, 414 U.S. 5 (1973), we summarily reversed the holding of the Ninth Circuit that the same official acts alleged here gave rise to an estoppel that prevented the Government from invoking the December 31, 1946, cutoff in the 1940 Act. We said that normal estoppel rules applicable to private litigants did not apply to the INS since, "in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, [the INS] is enforcing the public policy established by Congress." Id., at 8. Although the Ninth Circuit's holding in the present cases rests upon a somewhat different theory - not that estoppel eliminates the effectiveness of the December 31, 1946, cutoff, but that equitable authority to craft a remedy enables the conferral of citizenship despite that cutoff - we think our reasoning in Hibi quite clearly produces the same result. The reason we expressed why estoppel could not be applied, viz., that that doctrine could not override a "public policy established by Congress," surely applies as well to the invocation of equitable remedies. Even assuming the truth of the Ninth Circuit's unsupported assertion that "[i]n reviewing naturalization petitions, federal courts sit as courts of equity," 796 F.2d, at 1102, it is well established that "[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." Hedges v. Dixon County, 150 U.S. 182, 192 (1893). "A Court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law . . . ." Rees v. Watertown, 19 Wall. 107, 122 (1874). See also, e. g., Thompson v. Allen County, 115 U.S. 550, 555 (1885); 1 J. Story, Equity Jurisprudence 19 (W. Lyon ed. 1918). More fundamentally, however, the power to make someone a citizen of the United States has not been conferred upon [486 U.S. 875, 884] the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers. See, e. g., 28 U.S.C. 1361; 28 U.S.C. 1651. Rather, it has been given them as a specific function to be performed in strict compliance with the terms of an authorizing statute which says that "[a] person may be naturalized . . . in the manner and under the conditions prescribed in this subchapter, and not otherwise." 8 U.S.C. 1421(d) (emphasis added). "An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare." United States v. Ginsberg, 243 U.S. 472, 474 (1917). Or as we have more recently said: "`Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship.'" Fedorenko v. United States, 449 U.S. 490, 517 (1981) (citation omitted). The congressional command here could not be more manifest. Besides the explicit cutoff date in the 1940 Act, Congress in 1948, adopted a new liberalized citizenship program that excluded Filipino servicemen, and specifically provided that even applications timely filed under the 1940 Act and still pending would be adjudged under the new provisions. Act of June 1, 1948, Ch. 360, 62 Stat. 281. These provisions were carried forward into the 1952 Nationality Act, see 66 Stat. 250, 8 U.S.C. 1440. (It is particularly absurd to contemplate that Filipinos who actually filed their applications before the 1946 cutoff were denied citizenship by reason of this provision, whereas the present respondents, who filed more than 30 years after the deadline, were awarded it by the Ninth Circuit.) Finally, in 1961, Congress amended the 1952 Act by adding 310(e), 8 U.S.C. 1421(e), which specifies that "any" petition thereafter filed will be adjudged [486 U.S. 875, 885] under the requirements of the 1952 Act. Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of these limitations. B Respondents advance as an alternative ground for affirmance the claim that Attorney General Clark's revocation of Vice Consul Ennis' naturalization authority deprived them of their rights under the Due Process Clause of the Fifth Amendment and under its equal protection component. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Assuming that these respondents can properly invoke the protections of the United States Constitution, and granting that they are members of a special class that Congress intended to favor with statutory entitlements to naturalization, they were not deprived of those entitlements without due process. First, it did not violate due process for Congress to impose a reasonable limitations period upon the filing of naturalization petitions. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). Second, even assuming that a reasonable opportunity to file for naturalization was required, respondents were accorded at least that. Unlike noncitizen servicemen in other parts of the world, they had the continuous presence of a 702 naturalization officer in the Philippines from August 1945 through October 1945, and from August 1946 to the end of that year. In this last period, the officer naturalized approximately 4,000 Filipinos. In addition, approximately another 7,000 Filipinos were naturalized either in this country or by naturalization officers traveling post to post around the world. We do not agree with respondents' contention that in addition to these ample opportunities, respondents were entitled as a matter of due process to individualized notice of any statutory rights and to the continuous presence of a naturalization officer in the Philippines from October 1945 until July 1946. [486 U.S. 875, 886] We also reject the possibility of a violation of the equal protection component of the Fifth Amendment's Due Process Clause. The approximately 7-month presence of a naturalization officer in the Philippines not only met the applicable standard of equal protection, but indeed compared favorably with the merely periodic presence of such officers elsewhere in the world. See generally Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 79 -83 (1976). Moreover, beyond the absence of any unequal treatment, the historical record lends no support whatever to the contention that the actions at issue here were motivated by any racial animus. Indeed, it is fair to assume that the Filipino soldiers who fought so valiantly during the early months of World War II were regarded with especial esteem when this legislation was enacted and implemented. Every court to consider this matter has observed that Attorney General Clark's and Commissioner Carusi's decisions were taken in response to the concerns of Philippine officials that their nation would suffer a manpower drain, and not because of hostility towards Filipinos. See n. 5, supra. Thousands of Filipinos were naturalized outside the Philippines during the period in question, and approximately 4,000 more in the Philippines after a successor to Ennis was appointed in August 1946. C Respondents Litonjua and Manzano argue that the Government cannot prevail in their cases even if it prevails with respect to the 14 Pangilinan respondents because it did not introduce any evidence in their cases concerning the historical events at issue. This argument fails, since "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect," Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967). We also reject respondent Litonjua's assertion that his claim should be treated differently because he is within that category of veterans ("Category I" as described in Matter of [486 U.S. 875, 887] Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 937-940 (ND Cal. 1975)) whose petitions it has been the policy of the Government not to oppose. That category includes only veterans who had taken some affirmative steps to obtain naturalization both before the December 31, 1946, cutoff date and while they were still on active duty. Ibid. Litonjua made his first efforts after he was no longer on active duty with the Armed Forces. We have considered Litonjua's and Manzano's other separate claims and have found none that is meritorious. * * * For the reasons stated, the judgments of the Court of Appeals are reversed. It is so ordered. JUSTICE BLACKMUN concurs in the result. JUSTICE KENNEDY took no part in the consideration or decision of these cases. Footnotes [Footnote 1 The two cases actually involve three lawsuits: two appeals (both part of No. 86-1992) that were consolidated in the Court of Appeals (Pangilinan v. INS and Litonjua v. INS) and a third (INS v. Manzano, No. 86-2019) that was consolidated by this Court with No. 86-1992. [Footnote 2 Section 701 provided in pertinent part: "[A]ny person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who, having been lawfully admitted to the United States, including its Territories and possessions, shall have been at the time of his enlistment or induction a resident thereof, may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign his petition in his own handwriting, or meet any educational test; and (4) no fee shall be charged or collected for making, filing, or docketing the petition for naturalization, or for the final hearing thereon, or for the certification of naturalization, if issued: Provided, however, That . . . the petition shall be filed no later than [December 31, 1946] . . . ." [Footnote 3 Section 702 provided in pertinent part: "During the present war, any person entitled to naturalization under section 701. of this [Act], who while serving honorably in the military . . . forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship . . . ." [Footnote 4 Section 705 provided in pertinent part: "The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations, as may be necessary to carry into effect the provisions of this Act." [Footnote 5 The Commissioner's memorandum to Attorney General Clark read in pertinent part: "The Philippine Government again has expressed to the Department of State its concern because Filipino members of the armed forces of the United States are being naturalized even though they have always been domiciled in the Philippine Islands. Since the Islands are not embraced within the domain of any naturalization court, naturalization therein may be awarded only by an administrative official designated by me under the authorization of Section 702 of the Nationality Act, 8 U.S.C. 1002. Mr. George H. Ennis, Vice Consul of the United States at Manila, has been [486 U.S. 875, 880] designated to grant naturalizations under Section 702, but I do not believe he has as yet exercised his authority. "In view of the concern expressed by the Philippine Government, it is my belief that that situation might best be handled by revoking the authority previously granted to Mr. Ennis and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. This course would eliminate a source of possible embarrassment in our dealings with the Philippine people, who probably will be awarded independence in the near future." Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945, quoted in Matter of Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 936, n. 5 (ND Cal. 1975). [486 U.S. 875, 888]

conservative

person

civil_rights

1963-036-01

United States Supreme Court HARDY v. UNITED STATES(1964) No. 112 Argued: November 21, 1963Decided: January 6, 1964 After an indigent defendant in a federal court had been convicted and sentenced to imprisonment, the court-appointed lawyer who represented him at the trial withdrew his appearance. The Court of Appeals appointed different counsel to represent the indigent, and this counsel moved for a transcript of the entire proceedings of the trial to aid him in obtaining leave to appeal in forma pauperis. That motion was denied. Held: Counsel was entitled to be furnished a free transcript of the trial. Pp. 279-282. (a) Where new counsel represents an indigent on appeal, he cannot faithfully discharge his obligation either in obtaining leave to appeal or in presentation of an appeal unless he has the entire transcript. Pp. 279-280. (b) The right, under Rule 52 (b) of the Federal Rules of Criminal Procedure, to notice "plain errors or defects" is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended. P. 280. (c) The duty of counsel on appeal is not to serve as amicus to the Court of Appeals, but as advocate for the appellant. Pp. 281-282. (d) The Court here deals only with the statutory scheme and does not reach a consideration of constitutional requirements. P. 282. Reversed. Mozart G. Ratner argued the cause and filed briefs for petitioner. Louis F. Claiborne argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller and Philip R. Monahan. [375 U.S. 277, 278] John H. Pratt, Daniel M. Singer and Louis M. Kaplan filed a brief for the Bar Association of the District of Columbia, as amicus curiae, urging reversal. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioner, a pauper, has been convicted and sentenced to prison. After conviction the court-appointed lawyer, who represented him at the trial, withdrew his appearance with the approval of the court. The present court-appointed attorney is a different person, appointed by the Court of Appeals after the indigent had prepared pro se a petition for leave to appeal in forma pauperis. The District Court denied leave to appeal in forma pauperis. The Court of Appeals, although empowered to allow the appeal (Coppedge v. United States, 369 U.S. 438, 455 ), merely allowed petitioner to proceed in forma pauperis for purposes of the appeal "to the extent of having the stenographic transcript of the testimony and evidence presented by the government prepared at the expense of the United States," as those parts of the transcript were the only ones that relate "to the conclusory allegations" formulated by the indigent defendant pro se. See Ingram v. United States, 315 F.2d 29, 30-31. After a petition for rehearing was denied, petitioner moved the Court of Appeals for a transcript of the balance of the proceedings in the District Court. This motion was denied by a divided Bench. The case is here on certiorari. 373 U.S. 902 . We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, supra, at 441; 28 U.S.C. 1291, 1294), and where the appellant is entitled to "the aid of counsel unless he insists on being his own." Johnson v. United States, 352 U.S. 565, 566 . Congress has buttressed that right of appeal in several ways. It has provided in 28 U.S.C. 1915 that any federal court may authorize an "appeal" in forma pauperis, [375 U.S. 277, 279] except that such an appeal may not be taken if the trial court certifies that "it is not taken in good faith." Further, a transcript is available for appeal purposes, Congress having provided in the Court Reporter Act, 28 U.S.C. 753 (b), that a transcript "by shorthand or by mechanical means" of "all proceedings in criminal cases had in open court" shall be made. The United States Attorney for the District of Columbia has adopted the practice of furnishing to indigents a full transcript on request if the cost to the United States is not more than $200. 1 That policy draws a distinction not present in the statute nor in the Rules of the Court of Appeals which provide that, when the Court allows an appeal in forma pauperis, it shall then determine "whether and to what extent, a transcript will be necessary for the proper determination of the appeal." D.C. Cir. Rule 33 (b) (2) (i). We have here a case where an appeal in forma pauperis has not yet been allowed. But whether counsel seeks an entire transcript at that stage or later on, the problem seems to us to be the same. A court-appointed counsel who represents the indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. Coppedge v. United States, supra, at 446; Ingram v. United States, supra. 2 But when, as here, new [375 U.S. 277, 280] counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that. For Rule 52 (b) of the Federal Rules of Criminal Procedure provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The right to notice "plain errors or defects" is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended. 3 [375 U.S. 277, 281] The duty of counsel on appeal, as we noted in Ellis v. United States, 356 U.S. 674, 675 , is not to serve as amicus to the Court of Appeals, but as advocate for the appellant: "Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U.S. 565 . In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required. If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the [375 U.S. 277, 282] possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied." (Italics added.) We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements. We see no escape from the conclusion that either where the requirements of a nonfrivolous appeal prescribed by Coppedge v. United States, supra, are met, or where such a showing is sought to be made, and where counsel on appeal was not counsel at the trial, the requirements placed on him by Ellis v. United States, supra, will often make it seem necessary to him to obtain an entire transcript. We conclude that this counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution. Reversed. Footnotes [Footnote 1 During oral argument of this case, counsel for respondent stated that the United States Attorney for the District of Columbia initiated, since this case was before the lower courts, a practice of not filing an opposition to a motion for a full transcript where the cost of such a transcript will not exceed $200. This is usually the case when the trial does not exceed three days. This practice is followed because the United States Attorney feels that the time and effort necessary to oppose such a motion will, in terms of dollars, exceed $200. According to counsel, the Federal District Court, pursuant to a "tacit" understanding, usually grants unopposed motions for a complete transcript. [Footnote 2 In Ingram the Court of Appeals said: ". . . when a pro se petition is filed, upon direct appeal from judgment of conviction, and the claims of error stated therein (e. g., `insufficiency of evidence,' `unlawful search and seizure,') are so conclusory in nature that `their substance cannot adequately be ascertained,' counsel will be appointed and, simultaneously, the portion of the transcript of proceedings which relates to the conclusory allegations will be ordered so that appointed counsel may determine their merit. Of course, counsel will not be limited to the transcript initially allowed if he can in good conscience advance other claims of error requiring additional portions of the transcript." Id., at 30-31. [Footnote 3 Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783, 792-793 (1961), in speaking of the task of counsel who is appointed to represent the appellant and who did not serve as trial counsel, says: ". . . the new counsel is operating under serious handicaps. Normally he has no prior acquaintance with the trial proceedings and no personal knowledge of the case which would form a basis for sound judgment. Normally no transcript is in existence at this stage, so he cannot make his own independent analysis of the trial proceedings. "In order to investigate whether the appeal involves one or more `not plainly frivolous' issues, counsel may examine the formal documents on record in the trial court; he may interview his client; he may discuss the case with defendant's trial counsel and with the prosecutor; he may try to work out with the prosecutor an `agreed statement' of the case, despite the fact that he lacks the information necessary to assure himself that the agreed statement would be an accurate one; he may ask the official court reporter as a courtesy to read back certain limited portions of the reporter's shorthand notes [375 U.S. 277, 281] (or all of them, if the trial was a short one); and it has been suggested - though perhaps without too much regard for the practicalities of some situations - that he may even interview the trial judge and seek to inspect any notes which the trial judge kept of the trial proceedings. Such efforts are apt to be incredibly time-consuming and frustrating, and sometimes may arouse in counsel a feeling that he would be well advised to avoid future assignments of appellate in forma pauperis work. But worse than that, in many instances these efforts will be wholly unsatisfactory as a means of safeguarding the defendant's rights. "Recollections and notes of trial counsel and of others are apt to be faulty and incomplete. Frequently, issues simply cannot even be seen - let alone assessed - without reading an accurate transcript. Particularly is this true of questions relating to evidence or to the judge's charge; and it may also apply to many other types of questions. Moreover, the actual record (if appellate counsel could have it to inspect) might disclose issues substantial enough to constitute probable or possible `plain error,' even though trial counsel was not aware of their existence; and the indigent should have the same opportunity as the wealthy to urge that plain error should be noticed on appeal. In short, a conscientious counsel freshly entering the case at the appellate stage normally is likely to conclude that a full or partial transcript of the trial proceedings will be indispensable if the requisite `dependable record' is to be obtained as a basis for evaluating the case." MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, concurring. I join the Court's opinion which is written narrowly within the framework of prior decisions. I concur separately, however, to state my conviction that in the interests of justice this Court should require, under our supervisory power, that full transcripts be provided, without limitation, in all federal criminal cases to defendants who cannot afford to purchase them, whenever they seek to prosecute an appeal. The problem here arises out of the different procedures by which criminal appeals taken by indigent and nonindigent defendants are processed in the District of [375 U.S. 277, 283] Columbia and other federal courts. The procedure for nonindigents, who are represented by retained counsel and who are generally free on bail pending appeal, is automatic, direct and prompt. Within 10 days after judgment, counsel files a simple notice of appeal with the clerk of the District Court; a transcript is purchased and filed with the Court of Appeals; and the case is then automatically placed on the calendar for briefing and argument on the merits. 1 The procedure for indigents, who are generally incarcerated pending appeal because of their inability to make bail, 2 is indirect, dilatory and discretionary. A key difference is that while a nonindigent may appeal, in effect, as a matter of right, an indigent must make a showing that his claims of error are not frivolous before he is given permission to appeal. A brief description of the process by which the federal courts seek to screen frivolous attempts to appeal in forma pauperis is necessary to an understanding of the problem raised by this case. Following the conviction and sentencing of an indigent defendant, his court-appointed trial lawyer often withdraws from the case. 3 If the right to appeal is to be preserved, [375 U.S. 277, 284] the defendant pro se must file a notice of appeal within 10 days after the entry of the judgment and must apply to the District Court for leave to appeal in forma pauperis. The application must include a statement of the alleged errors the defendant seeks to raise on appeal. Unless the District Court concludes that the appeal is not taken in "good faith," leave to appeal in forma pauperis must be granted. If the District Court denies leave to appeal in forma pauperis, the defendant, who, as previously noted, is often without the services of an attorney, may apply to the Court of Appeals for leave to appeal. If the Court of Appeals can determine from the application that a nonfrivolous claim of error exists, it [375 U.S. 277, 285] must grant leave to appeal. If leave is granted, either by the District Court or the Court of Appeals, a lawyer is then appointed and supplied with the portions of the transcript relating to the nonfrivolous claims. If he then desires any additional portion of the transcript to help him prepare his appeal on the merits, he must ask the Court of Appeals to order its preparation. If the District Court has denied leave to appeal in forma pauperis, and if "the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing . . ." that the case presents a nonfrivolous issue. Coppedge v. United States, 369 U.S. 438, 446 . A "record of sufficient completeness" has been interpreted by the Court of Appeals for the District of Columbia to mean "the portion of the transcript of proceedings which relates to the conclusory allegations" made by the defendant in his pro se application. Ingram v. United States, 114 U.S. App. D.C. 283, 285, 315 F.2d 29, 31. After receiving the relevant portion of the transcript, the appointed lawyer has the duty of preparing a memorandum showing, if he can, that the case presents a nonfrivolous issue and that leave to appeal should be granted. If the lawyer finds what he considers a nonfrivolous claim of error in the portion of the transcript he has been given, he files the memorandum. If the court then agrees that there is a nonfrivolous issue, it must grant leave to appeal in forma pauperis, and the same previously described procedure is then followed as would be followed if leave had been granted originally by the District Court or the Court of Appeals. [375 U.S. 277, 286] If the lawyer has examined the portions of the transcript relating to the pro se claims of error and has satisfied himself that they contain no issue which he can assert to be nonfrivolous, he then has these alternatives. Deeming his appointed function exhausted, the attorney may seek leave from the Court of Appeals to withdraw from the case on the ground that he is satisfied that the case presents no issue which is nonfrivolous. 4 If leave to withdraw is granted, a new lawyer is generally not appointed, and the defendant is informed that he may submit his own memorandum in support of his application. Since the pro se memorandum will rarely add anything to the original application, once the lawyer is given leave to withdraw denial of the defendant's application is virtually inevitable. The lawyer who has satisfied himself that the transcript originally ordered contains no nonfrivolous issue may, however, decide to request additional portions of the transcript before seeking to withdraw from the case. If his examination of the original portions of the transcript leads him to suspect specific error in other portions of the transcript, the Court of Appeals, upon being presented with these new claims of error, will order the production of those portions of the transcript relating to these claims. Where the appointed lawyer can find no nonfrivolous claim of error in the portion of the transcript relating to the claims raised in the defendant's pro se application but has no idea whether the remainder of the transcript will disclose any such claim, he cannot in good conscience allege any new claim of error to which additional portions of the transcript would be relevant. Nor can he, without being furnished with the remainder of the transcript, conclude in good conscience that the case presents no issue which is nonfrivolous. [375 U.S. 277, 287] Counsel in this case was presented with precisely this dilemma and sought resolution of it by asking the Court of Appeals either to order the production of the remainder of the transcript, or to terminate his responsibility in that court by denying leave to appeal in forma pauperis. The Court of Appeals granted neither request. Thus we now have before us for resolution the problem of the conscientious appointed counsel at this critical stage in the screening process. This case, therefore, although it arises in the context of a request for portions of a transcript, raises fundamental questions concerning the proper role of appointed counsel on appeal. If the function of appointed counsel is essentially to aid the court, as amicus curiae, in assessing the claims of errors made in the pro se petition and in determining whether they include a nonfrivolous issue, then the practice now prevailing is perfectly suited to its end. It is then entirely logical to give the appointed lawyer only those portions of the transcript relating to the pro se claims of error, and to permit him to withdraw from the case if those portions of the transcript reveal no nonfrivolous claims. However, if the proper function of the appointed lawyer is essentially the same as that of the retained lawyer - to be an effective advocate in an adversary system - then there can be no justification for limiting him to those portions of the transcript relating to the claims of error raised by his indigent and often illiterate client and for permitting - indeed in effect requiring - him to withdraw from the case without examining the remainder of the trial transcript. It cannot seriously be suggested that a retained and experienced appellate lawyer would limit himself to the portions of the transcript designated by his client or even by the trial attorney, especially where the Courts of Appeals may, and not infrequently do, reverse convictions for "plain errors" not raised at trial. [375 U.S. 277, 288] The proper function of appointed counsel on appeal has been described by this Court. "[R]epresentation in the role of an advocate is required." Ellis v. United States, 356 U.S. 674, 675 . It is not enough that the appointed counsel perform "essentially the role of amici curiae." Ibid. If this requirement is to be more than a hollow platitude, then appointed counsel must be provided with the tools of an advocate. As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law. 5 Anything short of a complete transcript is incompatible with effective appellate advocacy. The opinion of the Court agrees with this conclusion as it relates to "one whose lawyer on appeal enters the case after the trial is ended." Ante, at 280. I believe that it is equally applicable to one whose appointed lawyer on appeal was also his lawyer at trial. No responsible retained lawyer who represents a defendant at trial will rely exclusively on his memory (even as supplemented by trial notes) in composing a list of possible trial errors which delimit his appeal. Nor should this be required of an appointed lawyer. An appointed lawyer, whether or not he represented the defendant at trial, needs a complete trial transcript to discharge his full responsibility of preparing the memorandum supporting the application to proceed in forma pauperis. 6 [375 U.S. 277, 289] I believe further that the availability of a complete transcript should not be made to depend on the facts of each case. This Court has recently condemned "the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached." Coppedge v. United States, 369 U.S., at 450 . One of the prime reasons for this delay has been the "separate considerations of motions . . . for the preparation of a transcript of the trial proceedings . . . ." Ibid. A case-by-case approach - regardless of the governing standard - must inevitably contribute to this delay. Experience in this area has shown the need for a clear and simple across-the-board rule that would obviate the necessity for further court considerations of transcript requests. This rule should be that any criminal defendant desiring to appeal who cannot afford a transcript 7 must be given one to help his appointed lawyer prepare a memorandum establishing the existence of a nonfrivolous issue in support of the application for leave to appeal in forma pauperis. [375 U.S. 277, 290] The Government suggests that such a memorandum can be adequately prepared, even by a lawyer newly appointed on appeal, without more transcript than is presently provided. It would have the lawyer conduct an investigation, including interviews with the trial judge, the prosecuting attorney and the trial defense counsel, in an effort to reconstruct the events of the trial. At best, however, this is a poor substitute for a transcript in disclosing possible error. Moreover, a lawyer appointed to represent the interests of a defendant should not be required to delegate his responsibility of determining whether error occurred at trial to participants at that trial whose conduct may have formed the very basis for the errors. Finally, this interview requirement is unduly burdensome on the appointed lawyers who are required to serve without compensation. As the Attorney General's Committee on Poverty and the Administration of Criminal Justice recently observed: "It is not far from the truth to say that the federal system seeks to avoid the expenses of supplying transcripts to all financially disadvantaged defendants desiring to appeal by shifting the burdens to lawyers required to serve without compensation or reimbursement of expenses." 8 I conclude, therefore, that the interests of equal justice and the viability of our adversary system 9 are impaired [375 U.S. 277, 291] when an indigent defendant's access to a trial transcript is not as complete as that of a paying defendant. This "concept of `equal justice' does not confuse equality of treatment with identity of treatment." 10 It does, however, require the Government to do "all that can reasonably be required of it to eliminate those factors that inhibit the proper and effective assertion" of the defendant's claims. 11 Providing a complete transcript to all defendants who cannot afford to purchase one will not create an undue financial burden on the Government. Statistics for the last three years for which figures are available indicate that almost 90% of the criminal trials in the District of Columbia lasted three days or less and that a "transcript of a three-day trial will generally cost less than $200 to prepare . . . ." 12 The Government informs us that its present practice in the District of Columbia is not to [375 U.S. 277, 292] oppose the preparation of transcripts which cost $200 or less to prepare. It seems likely, therefore, that a system of free transcripts will, in the long run, be less expensive than the present system with its multiple proceedings and frequent delays. 13 Moreover, the financial costs are relatively unimportant when compared [375 U.S. 277, 293] with the unnecessary hardship to defendants, many of whom are incarcerated during their attempts to secure appellate review because of their inability to raise the necessary bail. 14 I agree with Judge Learned Hand: "If [375 U.S. 277, 294] we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." 15 Finally, the foregoing discussion leads me to the ultimate conclusion that the cause of equal justice is unduly hindered by the cumbersome obstacles to appeal which have been erected by the procedure for screening frivolous attempts to appeal in forma pauperis. I agree, therefore, with my Brothers STEWART and BRENNAN, in their concurring opinion in Coppedge, 369 U.S., at 458 , that "each Court of Appeals might well consider whether its task could not be more expeditiously and responsibly performed by simply" eliminating the entire process for screening in forma pauperis appeals and by treating such appeals in the same manner as paid appeals are now [375 U.S. 277, 295] treated. 16 Since "no a priori justification can be found for considering [in forma pauperis appeals], as a class, to be more frivolous than those in which costs have been paid," id., at 449, it would seem to follow that no justification exists for erecting artificial barriers to appeal for indigent defendants, "[p]articularly since [these] litigants . . . may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition . . . ." Id., at 450. 17 However, [375 U.S. 277, 296] as long as the Courts of Appeals continue to require a preliminary showing before granting an indigent leave to appeal, we can do no less than require, under our supervisory power, that a full transcript be made available, without limitation, to the lawyer appointed to help make that showing. [Footnote 1 Rule 39 (d) of the Federal Rules of Criminal Procedure provides that: "Unless good cause is shown for an earlier hearing, the appellate court shall set the appeal for argument on a date not less than 30 days after the filing in that court of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit. Preference shall be given to appeals in criminal cases over appeals in civil cases." [Footnote 2 See Pannell v. United States, 115 U.S. App. D.C. 379, 320 F.2d 698; Committee on the Administration of Bail of the Junior Bar Section of the Bar Association of the District of Columbia, Report on the Bail System of the District of Columbia (1963). [Footnote 3 Permitting the trial lawyer to withdraw at that stage probably reflects a recognition both of the burden of serving as uncompensated trial counsel and of the different skills often possessed by trial and [375 U.S. 277, 284] appellate lawyers. By noting the existence of a hiatus in representation at such a critical period, I do not intend to signify approval. The Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice described this phase of the process as follows: "[T]he convicted defendant must file a notice of appeal within ten days after the entry of the judgment, if the right to appeal is to be preserved. Since an assigned counsel under present practices often does not conceive it to be part of his obligations to advise the defendant of his right to appeal or to assist in perfecting that right, and since many district courts do not routinely advise the defendant of his appeal rights, some financially disadvantaged defendants, because of their ignorance of the jurisdictional requirements, irrevocably lose their rights to appeal. The defendant who is unable to pay the costs of a trial transcript or to pay court costs is required to apply for leave to appeal in forma pauperis. The application, which is in affidavit form, contains allegations of financial incapacity and the reasons relied on by defendant to obtain redress in the appellate courts. Because normally no provision is made for counsel at this stage of the proceedings, the application is often inexpertly prepared and conceived, frequently resulting in injury to the defendant's interests and to the sound administration of justice." Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, Report on Poverty and the Administration of Federal Criminal Justice (1963), 100 (hereinafter cited as Attorney General's Report). [Footnote 4 In the District of Columbia, many lawyers chose this course and, at least until recently, leave to withdraw was freely granted. [Footnote 5 See, e. g., Tatum v. United States, 88 U.S. App. D.C. 386, 190 F.2d 612; Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862; United States v. Currens, 290 F.2d 751; McDonald v. United States, 114 U.S. App. D.C. 120, 312 F.2d 847; Miller v. United States, 116 U.S. App. D.C. 45, 320 F.2d 767. [Footnote 6 Under the practice now prevailing, problems relating to transcripts may arise both before and after leave to appeal in forma [375 U.S. 277, 289] pauperis is granted. If counsel were provided with a complete transcript upon being appointed to prepare the memorandum in support of the application to appeal in forma pauperis, the problem of supplying additional portions of the transcript after leave is granted would become moot. [Footnote 7 Indigence "must be conceived as a relative concept. An impoverished accused is not necessarily one totally devoid of means." Attorney General's Report, at 8. An accused must be deemed indigent when "at any stage of the proceedings [his] lack of means . . . substantially inhibits or prevents the proper assertion of a [particular] right or a claim of right." Ibid. Indigence must be defined with reference to the particular right asserted. Thus, the fact that a defendant may be able to muster enough resources, of his own or of a friend or relative, to obtain bail does not in itself establish his nonindigence for the purpose of purchasing a complete trial transcript or retaining a lawyer. [Footnote 8 Attorney General's Report, at 102. [Footnote 9 Id., at 10-11: "The essence of the adversary system is challenge. The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements [375 U.S. 277, 291] and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. Persons suffering such disabilities are incapable of providing the challenges that are indispensable to satisfactory operation of the system. The loss to the interests of accused individuals, occasioned by these failures, [is] great and apparent. It is also clear that a situation in which persons are required to contest a serious accusation but are denied access to the tools of contest is offensive to fairness and equity. Beyond these considerations, however, is the fact that the conditions produced by the financial incapacity of the accused are detrimental to the proper functioning of the system of justice and that the loss in vitality of the adversary system, thereby occasioned, significantly endangers the basic interests of a free community." [Footnote 10 Id., at 9. [Footnote 11 Ibid. [Footnote 12 Special Committee of the Junior Bar Section of the Bar Association of the District of Columbia, Report to the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, reprinted in Brief of the Bar Association of the District of Columbia as amicus curiae, at A-9, A-16. [Footnote 13 The Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice made the following observation concerning the real cost of the present system: "The Committee believes that proper evaluation of comparative costs requires that attention be directed to the `hidden costs' of the present system. First there are the costs in judicial time in the district courts and courts of appeals, just noted, that result from the administration of the present system. Second are the costs in the time of public officials required to be interviewed by assigned counsel in his effort to establish a record or to justify the ordering of a transcript in proceedings involving leave to appeal in forma pauperis. Third are the costs of time, effort, and expense of assigned counsel. The present system is able to function at all only by shifting a large part of the burdens of the system on lawyers who are required to serve without compensation or reimbursement. It should be carefully noted that in a system of adequate representation involving the use of compensated counsel the shifting of many of these burdens to counsel will no longer be possible. In many cases the provision of a transcript at the outset of the appellate process will involve substantially less expense to the government than the payment of attorneys' fees for time spent by counsel in an effort to settle a record for disposition of the application to appeal in forma pauperis and in other proceedings made necessary by the present system. Fourth, a system that obstructs access to direct review is likely to encourage resort by prisoners to collateral attack on their convictions and sentences with losses of time and money thereby occasioned. Such has been the uniform experience of state systems of criminal justice." Attorney General's Report, at 114. The Bar Association of the District of Columbia, in their brief amicus curiae, state that "On the basis of [their] experience as appointed counsel, [they] believe strongly that providing a trial transcript in every case will significantly reduce the number of collateral attack proceedings under 28 U.S.C. 2255, habeas corpus, or coram nobis." The Attorney General's Report also points out "the fact [375 U.S. 277, 293] that the free accessibility and quality of appellate review has reduced collateral attacks on sentences imposed by courts martial [where the `record is supplied the defendant at government expense'] to an absolute minimum." Attorney General's Report, at 109. Thus, the automatic provision of free transcripts to all federal criminal defendants who cannot afford to purchase them would seem to be entirely consistent with the spirit of our recent decision in Bartone v. United States, 375 U.S. 52 , where the Court observed that "It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding." Id., at 54. [Footnote 14 The recent case of William H. Kemp, arising in the District of Columbia, illustrates the complexity of the in forma pauperis procedures, the attendant delays, and the resulting injuries to the accused. The procedural history of the case, as compiled by the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, follows: 1960, Dec. 13. . . . . Joint indictment with one Gray for the crime of housebreaking, petty larceny, and unauthorized use of vehicle. Crim. No. 1033-60. Dec. 16. . . . . Kemp pleaded not guilty. 1961, Feb. 3. . . . . Gray convicted of all three counts; Kemp acquitted of housebreaking and larceny, convicted of unauthorized use of motor vehicle. Mar. 17. . . . . Judgment entered sentencing Kemp to imprisonment for a period of one to three years. Mar. 21. . . . . Kemp's application to proceed on appeal without prepayment of costs was denied as plainly frivolous and not taken in good faith. Apr. 17. . . . . Application to proceed on appeal without prepayment of costs filed in the court of appeals. May 18. . . . . Application for leave to appeal denied by a panel of the court of appeals, one judge dissenting. June 1. . . . . Petition for rehearing en banc filed. [375 U.S. 277, 294] June 15. . . . . Petition for rehearing en banc denied, two judges noting that they would grant the petition. July 14. . . . . Petition for leave to proceed in forma pauperis and petition for writ of certiorari filed in the Supreme Court of the United States. No. 311, Misc. 1962, May 14. . . . . Motion for leave to proceed in forma pauperis and petition for certiorari granted; judgment vacated and case remanded for consideration in light of Coppedge. July 18. . . . . Per curiam order in Court of Appeals directing that petitioner be allowed to appeal without prepayment of costs and with transcript at government expense. Dec. 13. . . . . Per curiam reversal and remand with directions to enter a judgment n.o.v. and discharge of appellant. Kemp was arrested on November 24, 1960. At the time of the opinion ordering his release, he had been confined well over two years. Attorney General's Report, at 103-104. [Footnote 15 Address before Legal Aid Society of New York, Feb. 16, 1951. Even if I were to assume, as the Government argues, that requiring the provision of free services for indigents may sometimes have the effect of placing them in a more advantageous position than that of [375 U.S. 277, 295] the defendant who, while not indigent, has limited financial resources, the answer to this problem would not be to deny the means of an effective appeal to the former; it would be to make such means more easily available to the latter, by broadening the concept of "indigency," see note 7, supra, by adopting a system whereby the accused pays what he can afford and the Government pays the rest, or by providing some or all of these resources freely to anyone who requests them regardless of financial ability. See note 13, supra. [Footnote 16 "The Government would then be free in any case to file before argument a motion to dismiss the appeal as frivolous, as every appellee is always free to do." Coppedge v. United States, 369 U.S., at 458 . [Footnote 17 Attorney General's Report, at 113-114: "[T]he Committee believes that the present practices are largely self-defeating and that they can be abandoned without creating unmanageable burdens of costs or necessitating undue expenditures of judicial time. Every justification of the present practices which has come to the Committee's attention is predicated on the assumption that the screening procedures are required to prevent an inundation of frivolous appeals and that the increases in the number of appeals will result in large monetary costs to the government and in substantial burdens on adjudication in the courts of appeals. We believe that even if these fears were substantial, such considerations are not entitled to be given decisive weight by a system of criminal justice dedicated to the objective of full and equal justice to all accused persons and to the proper and vigorous operation of the adversary system. The Committee notes, however, that many American states - some sufficiently populous to provide reasonable comparisons with the federal system of justice - have granted financially disadvantaged defendants full access to appellate review without experiencing burdens [375 U.S. 277, 296] approaching the magnitude of those sometimes predicted as the consequence of similar measures in the federal courts. We believe, also, that forecasts of inordinate burdens do not take adequate account of the fact that the proliferation of motions and petitions produced by present practice is highly expensive of judicial time." MR. JUSTICE CLARK, concurring in the result. A half dozen years ago, 28 U.S.C. 1915 clearly directed that no indigent appeal may be taken "if the trial court certifies in writing that it is not taken in good faith." The words of the statute are identical today but the Court's interpretations have stripped them of the apparent congressional meaning. In Johnson v. United States, 352 U.S. 565 (1957), we said that counsel must be appointed to represent an indigent who wishes to contest the validity of a certificate under 1915 and that such counsel must be "enabled to show that the grounds for seeking an appeal from the judgment of conviction are not frivolous and do not justify the finding that the appeal is not sought in good faith." At 566. In Farley v. United States, 354 U.S. 521 (1957), counsel for the indigent claimed that the evidence was insufficient to justify the conviction, and this Court required a transcript to be furnished on that point. A year later in Ellis v. United States, 356 U.S. 674 (1958), it appeared that counsel appointed by the Court of Appeals "performed essentially the role of amici curiae," at 675, and the Court held that "representation in the role of an advocate is required," ibid., vacating the judgment on the [375 U.S. 277, 297] concession of the Solicitor General that the question of probable cause raised by petitioner could not necessarily be called frivolous. In 1962 in Coppedge v. United States, 369 U.S. 438 , the Court held: "It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements." At 448. Today we are faced with the question whether counsel, appointed on an appeal to represent an indigent, but not present at the trial of the case in the District Court, is entitled to a full transcript so as to enable him to determine whether plain error or defects affecting substantial rights occurred during the trial. As I see the problem, the Government has not met the burden placed upon it by the above language in Coppedge, namely to sustain the frivolity of the appeal, insofar as plain error is concerned. It appears to me that the Government must furnish the full transcript in order to enable petitioner's new counsel to determine whether plain error occurred during the trial, and likewise to enable the Court of Appeals to pass upon the point. While I dissented in Coppedge as well as Farley, I feel bound by their holdings and therefore concur in the result here. In so doing, I trust that when Congress adopts the [375 U.S. 277, 298] Criminal Justice Act or similar legislation * which provides compensation for counsel representing indigents, the same counsel who tried the case in the District Court will be appointed in the Court of Appeals. [Footnote * S. 1057, the proposed Criminal Justice Act, was passed by the Senate August 6, 1963. The Judiciary Committee of the House of Representatives and the Rules Committee reported favorably a compromise bill, H. R. 7457, and on December 10, 1963, the House voted to take up the legislation on the floor. MR. JUSTICE HARLAN, dissenting. I think the Court should not, in the name of exercising its supervisory powers, engraft this further requirement on 28 U.S.C. 1915. 1 The holding is that an indigent convict who - following the trial court's certification that his appeal was frivolous and not taken in good faith - has received at the direction of the Court of Appeals a free copy of that portion of the trial transcript germane to the errors asserted as grounds for appeal, is entitled as of right to a free copy of the balance of the transcript if his appellate counsel was not the lawyer who represented him at the trial. The theory is that this is necessary to enable the new lawyer to discover possible "plain error." Four members of the Court would go further. They would furnish complete transcripts as a matter of course to all indigent appellants, whether or not represented at the appellate stage by the same lawyer who acted for them [375 U.S. 277, 299] at the trial. Ante, p. 288. And recognizing that any indigent receiving such a transcript is thus advantaged over an appellant who has to pay for his transcript, they go on to suggest that fairness may require that appellants who are not indigent, but impoverished, should be furnished free transcripts to the extent that they cannot afford to pay for them. Ante, p. 289, n. 7. Although the majority opinion stops short of both of these propositions, given what is now done can it be said that these more expansive positions are without force? Be that as it may, the Court has taken a long step in derogation of the hitherto consistently maintained view, both in federal and state criminal cases, that an indigent defendant is not automatically entitled to a free transcript simply because those economically better situated can obtain their transcripts at will. See Johnson v. United States, 352 U.S. 565, 566 ; Griffin v. Illinois, 351 U.S. 12, 20 ; Eskridge v. Washington Prison Board, 357 U.S. 214, 216 ; Draper v. Washington, 372 U.S. 487, 495 . Granting that 1915 has not caught up with this Court's recent pronouncements in this area (see concurring opinion of CLARK, J., ante, pp. 296-298) and that, as recommended in the recent report of the Attorney General's Committee, 2 the time has come for a comprehensive overhauling of the procedures governing in forma pauperis appeals in the federal system, I believe that such an undertaking is more appropriately to be accomplished by congressional action, taken in collaboration with the Judicial Conference of the United States, than by piecemeal adjudications of this Court. Especially meet for such a course is the innovation made today, a step which in countrywide application affects the public treasury to an [375 U.S. 277, 300] unknown degree, and whose wisdom should not be judged in the abstract or upon the limited data presently before the Court. A balanced solution of a problem having such unforeseeable ramifications requires consideration of the informed views of those on the firing line of the administration of criminal justice - District judges, Circuit judges, United States attorneys, defense lawyers and Legal Aid Societies - and exploration of differing conditions among the Circuits. It might be concluded that a nationwide requirement of this sort would be unsound, and that the matter is best left for discrete treatment by the Judicial Councils in the various Circuits, subject of course to constitutional limitations. Remotely situated as this Court is from the day-to-day workings of the criminal system, it should hesitate to promulgate blanket requirements on this subject based largely upon theoretical considerations. Cf. Sanders v. United States, 373 U.S. 1, 23 (dissenting opinion of this writer). I would dispose of this case as the Government suggests by remanding it to the Court of Appeals for further consideration in light of that court's subsequent decision in Ingram v. United States, 315 F.2d 29. I do not understand this Court's decision to rest on constitutional grounds, nor do I think it well could. [Footnote 1 " 1915. Proceedings in forma pauperis. "(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress. "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." [Footnote 2 Poverty and the Administration of Federal Criminal Justice, Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice (1963). [375 U.S. 277, 301]

liberal

public_entity

civil_rights

1957-148-01

United States Supreme Court JONES v. UNITED STATES(1958) No. 331 Argued: Decided: June 30, 1958 Having good reason to believe that it sheltered an illicit distillery, a federal officer obtained a daytime search warrant for petitioner's home but obtained no warrant for his arrest. After dark and without using the search warrant, but with good reasons to believe that liquor was being illegally distilled in the house, federal officers forced their way into the house and, without arresting anyone there at the time, seized distilling equipment. Petitioner was then absent, and he was not arrested until he returned to the house an hour later. At petitioner's trial in a federal court, the distilling equipment was admitted in evidence over his objection, and he was convicted of violations of federal liquor laws. Held: The search and seizure violated the Fourth Amendment, for they cannot be justified on the ground that the officers had probable cause to believe that the house contained contraband materials; and the admission of evidence so seized vitiated the conviction. Pp. 494-500. (a) Probable cause for belief that certain articles subject to seizure are in a home cannot of itself justify a search without a warrant. Pp. 497-499. (b) United States v. Rabinowitz, 339 U.S. 56 , distinguished. P. 499. (c) The issue whether the search and seizure were justified as incident to petitioner's lawful arrest is not fairly presented in this case, for the testimony of the federal officers makes clear that their purpose in entering the house was to search for the distilling equipment, not to arrest petitioner. Pp. 499-500. 245 F.2d 32, reversed. Wesley R. Asinof argued the cause and filed a brief for petitioner. Eugene L. Grimm argued the cause for the United States. With him on the brief were Solicitor General Rankin, Acting Assistant Attorney General Foley and Beatrice Rosenberg. [357 U.S. 493, 494] MR. JUSTICE HARLAN delivered the opinion of the Court. After a trial without a jury in the Federal District Court for the Northern District of Georgia, petitioner was found guilty of various violations of the federal liquor laws, stemming from and including the possession of an unregistered still. See 26 U.S.C. (Supp. V) 5601, 5216, 5008, 5681. His claim is that some of the evidence used against him at the trial should have been suppressed because it was obtained by an unlawful search and seizure by federal officers, and that its admission vitiates his conviction. The importance of maintaining strict standards for the admissibility of evidence so challenged in the federal courts led us to grant certiorari. 355 U.S. 810 . Federal alcohol agents received information on April 30, 1956, that petitioner's farmhouse near Dawsonville, Georgia, was the site of an illicit distillery in current operation. Investigating this lead, the agents discovered spent mash, a product resulting from the distilling of alcohol out of mash, in a hollow behind petitioner's house. The running mash emerged from a concealed rubber hose which, when traced as far as was consistent with caution, led close to petitioner's home. On May 1, four federal agents and one state officer returned to this vicinity. The officers observed mash still emerging from the hose, detected the distinctive odor of hot mash from the direction of the house, and heard coming from within the house the sounds of voices and of a blower burner, commonly used in that area to heat distilleries. At 2 a.m. on May 2, the officers abandoned their watch and returned to the nearby city of Gainesville. During the day, Federal Agent Langford obtained from the United States Commissioner there a daytime search warrant for petitioner's house on the basis of an affidavit [357 U.S. 493, 495] describing what had been discovered and asserting the officer's belief that the house sheltered an illicit distillery. Late that afternoon, but still in daylight, the five officers resumed their surveillance of the house. Rather than execute the daytime warrant at once, they decided to make further observations to determine which parties were implicated in the operations and whether any vehicles were being used. About 9 p. m., after darkness had set in, a truck entered petitioner's yard and retreated out of the officers' sight behind the house. Loud noises were heard, and when the truck shortly thereafter sought to regain the public road in front of the house, it became stuck in petitioner's driveway. The officers arrested the two men in the truck and seized what turned out to be 413 gallons of nontaxpaid liquor. At that time a passenger car carrying petitioner's wife and children drove into the yard. The wife rushed to the house and reached the doorway before the federal officers who were then advancing towards it. She sought to block entry by placing her arms across the door, and when informed by Langford of his identity as a federal officer, she demanded to see his search warrant. Langford said that a warrant was not required, and the officers brushed past Mrs. Jones into the house, seizing from the hands of her young boy a shotgun which he was brandishing in an apparent effort to prevent entry. In the house at that time, in addition to Mrs. Jones and the children, were petitioner's father and brother. The officers did not arrest any of them, but immediately engaged in a general search of the house. The evidence later admitted against petitioner at the trial, including a boiler, fuel burner, and 15 barrels, was seized in rear rooms and in the attic. Petitioner was arrested when he returned to his house about one hour after the search had been completed. [357 U.S. 493, 496] Petitioner moved before trial to suppress the use in evidence of the articles seized in his home. During the hearing on this motion, the Government conceded that by the time petitioner's house was searched the daytime search warrant had expired, and it disclaimed any intention on the part of the federal officers to execute it. Rather it urged that ". . . it is the reasonableness of the search which is under question." Federal Agent Evans testified that he thought a nighttime search warrant could be dispensed with because ". . . the crime was being committed in our presence, at least I assumed we had probable cause for that." 1 And Agent Langford explained his position by stating: ". . . I thought we had sufficient evidence to go in the premises without a search warrant." 2 The court, in denying the motion to suppress, entered findings of fact and conclusions of law wherein it stated: "The court finds that the facts and circumstances within the knowledge of the officers were sufficient in themselves to warrant a man of reasonable caution [357 U.S. 493, 497] in the belief that an offense was being committed and therefore the Court finds that probable cause for the search existed at the time the search was made." Since this was so, and since ". . . a cautious man [would have been warranted] in the belief that [petitioner] was guilty of the offense of operating an illicit distillery in his home . . .," the court deemed the search reasonable, and hence justified, despite the failure of the officers to obtain a nighttime warrant, and despite their ability, under the circumstances, to have sought such a warrant before entering the house. In so holding, the District Court relied upon United States v. Rabinowitz, 339 U.S. 56 . The Court of Appeals affirmed on the basis of the findings of the district judge. 245 F.2d 32. Although it must be recognized that the basis of the two lower court decisions is not wholly free from ambiguity, a careful consideration of the record satisfies us that the search and seizure were considered to have been justified because the officers had probable cause to believe that petitioner's house contained contraband materials which were being utilized in the commission of a crime, and not because the search and seizure were incident to petitioner's arrest. So viewed the judgments below cannot be squared with the Fourth Amendment to the Constitution of the United States 3 and with the past decisions of this Court. It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant. Agnello v. [357 U.S. 493, 498] United States, 269 U.S. 20, 33 ; 4 Taylor v. United States, 286 U.S. 1, 6 . The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy. See, e. g., Johnson v. United States, 333 U.S. 10, 14 ; McDonald v. United States, 335 U.S. 451, 455 ; cf. Giordenello v. United States, decided today, ante, p. 480. This purpose is realized by Rule 41 of the Federal Rules of Criminal Procedure, which implements the Fourth Amendment by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement officers justifies the issuance of a search warrant. Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified. The facts of this case impressively bear out these observations, for it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home that occurred in this instance. The Criminal Rules specifically deal with searches of this character by restricting nighttime warrants to situations where the affidavits upon which they are issued ". . . are positive that the property is . . . in the place to be searched . . . ." Rule 41 (c). (Italics added.) This Rule is hardly compatible with a principle that a search [357 U.S. 493, 499] without a warrant can be based merely upon probable cause. The case of United States v. Rabinowitz, supra, upon which the District Court relied, has no application here. There federal agents, without a search warrant, explored the office of the defendant and thereby obtained evidence used against him at trial. But immediately after entering the office and before their search, the agents executed a warrant they had previously obtained for the defendant's arrest. The Court stressed that the legality of the search was entirely dependent upon an initial valid arrest. 339 U.S., at 60 . The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn, and search incident to a valid arrest is among them. See, e. g., United States v. Jeffers, 342 U.S. 48, 51 ; Brinegar v. United States, 338 U.S. 160 ; Johnson v. United States, supra, at 14-15. None of these exceptions obtains in this case. The Government, however, for the first time now maintains that the search and seizure were justifiable as incident to petitioner's lawful arrest. Its argument is: The federal agents involved in this search had authority under federal law to arrest without a warrant upon probable cause to believe that a person had committed a felony. From the record it is "rational" to infer that the federal agents entered petitioner's house with the purpose of arresting him, upon probable cause to believe that he was guilty of a felony and that he was then in the house. Consequently, the agents' entry was justified and, once in the house, while searching for petitioner, they could properly seize all contraband material in plain sight. The fact that petitioner was not found should not vitiate the legality of the seizures. These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a [357 U.S. 493, 500] dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment. But we do not consider this issue fairly presented by this case, for the record fails to support the theory now advanced by the Government. The testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, and not to arrest petitioner. See notes 1 and 2, supra, p. 496. 5 Since the evidence obtained through this unlawful search was admitted at the trial, the judgment of the Court of Appeals must be Reversed. MR. JUSTICE BLACK concurs in the result. Footnotes [Footnote 1 This witness further testified: "Q. What crime did you see committed inside the house before you went inside to search the place? A. I didn't see any crime. Q. What crime did you say was committed in your presence? A. The one I saw was the transporting of the whiskey out through his yard. Q. Through his yard? A. Yes, sir. Q. You stopped that truck, didn't you? A. Yes, sir. Q. You arrested the occupants of that truck, did you not? A. Yes, sir. Q. Neither one of the occupants of that truck fled into that house, did they? A. No, sir. Q. So you had no knowledge that anyone else was even in the house, had you? A. If you mean by `knowledge,' did I see anyone else inside the house, no, sir." [Footnote 2 On cross-examination, Langford testified: "Q. Mrs. Jones did ask you not to come in, did she not? A. That is correct. Q. Mrs. Jones asked you, did she or not ask you to wait until her husband got there? A. I believe she did, yes." These answers amplified his earlier testimony: "Q. . . . Then you didn't wait until Mr. Jones, himself, came home, did you? A. I did not. Q. Yet they were his premises? A. That is correct." [Footnote 3 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [Footnote 4 In Agnello the Court said: "Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. . . . Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause." 269 U.S., at 33 . [Footnote 5 We cannot accept the suggestion that the entry was justified since it was made to disarm petitioner's young son of the shotgun. The record plainly enough reveals that this was but a passing episode in the course of the entry, and that the officers immediately proceeded to a search of the entire house. MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON concurs, dissenting. Although there are many ways to kill a cat, drowning remains the most favored. The Court applies that method to this conviction - drowning it by watering down the Findings of Fact and Conclusions of Law. By attributing to them a diluted meaning, the judgments of the District Court and the Court of Appeals are rendered insupportable. The District Court found that the officers in this moonshine liquor case received information that petitioner, previously known to them as a liquor law violator, was operating an illicit distillery in his home. In the course of an investigation the officers (1) found "spent mash" flowing from a hose which was traced to within 75 yards [357 U.S. 493, 501] of the house, (2) heard a "blower burner" of the type generally used in illicit distilleries, (3) smelled the odor of hot mash coming from the house, and (4) heard the moving of heavy objects from within the house. These observations were gained over a two-day period. On the third day the officers returned with a daylight search warrant, but decided to resume surveillance instead of immediately executing the warrant. After dark, as one person left the house to walk up the road, the officers heard conversation, specifically, an inquiry as to whether "they were ready for the truck to be brought to the house." An empty truck then entered the yard and drove to the back door of the house, where a thumping sound suggesting "activity with heavy objects" was heard. The truck, heavily laden, became stuck on its attempt to leave the yard; its two occupants then were arrested, and its contents - 413 gallons of nontaxpaid liquor - were seized. Thereafter, petitioner's wife and son, who had just arrived, attempted to bar the officers' entry into the house, telling them to wait until petitioner returned. The officers entered anyway, and in the course of a search, found the disputed evidence. The record reveals that petitioner was not found in the search of the premises, but was arrested when he returned later in the evening. From these findings common sense would seem to dictate the conclusion that the officers, not believing the statement of petitioner's wife that he was not there, entered the house to find and arrest petitioner. It was his house, he was known as a prior offender, and it was he who was implicated by the tip which launched the investigation. The district judge, in fact, concluded that "the officers had reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that Roy Jones was guilty of the offense of operating an illicit distillery in his home . . . ." [357 U.S. 493, 502] The Court, however, takes these findings and conclusions to mean that both the District Court and the Court of Appeals considered the search and seizure justified "because the officers had probable cause to believe that petitioner's house contained contraband materials which were being utilized in the commission of a crime, and not because the search and seizure were incident to petitioner's arrest." It is our duty, when the meaning of the findings is somewhat doubtful, to so construe them as to conform with and uphold the judgment. Cf. Larkin v. Upton, 144 U.S. 19, 21 (1892); Loring v. Frue, 104 U.S. 223, 224 (1881). This the Court has not done. The Court's construction is all the more surprising because it places the judgments below in direct conflict with an elementary rule of hornbook law, namely, that officers may not search a dwelling without a warrant "notwithstanding facts unquestionably showing probable cause." Agnello v. United States, 269 U.S. 20, 33 (1925). I feel certain the four learned judges on the two lower courts were well acquainted with the Agnello rule, and that they used the words "probable cause" as referring not ultimately to the search of the premises, but instead to the arrest of petitioner and any others violating the law within the house. This is borne out by the definition with which the trial judge introduced the crucial paragraph of his Conclusions of Law: "Probable cause is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged." Furthermore, the trial judge relied on United States v. Rabinowitz, 339 U.S. 56 (1950), a case where the legality of a search hinged on the legality of an arrest. The majority, nothing the judge's use of Rabinowitz, would have us believe that the case "has no application here"; on the contrary, it would appear that the majority [357 U.S. 493, 503] has overlooked the only reason for which the case was cited. I submit that the officers had authority to enter the house, arrest any persons engaged in the illicit operation, and, not finding petitioner, arrest him upon his return to the scene. Under the law as I have always understood it, an officer, even over protest, may enter a house to make an arrest where he has probable cause to believe that a felony is being or has been committed and that the perpetrators are in the house. Mullaney v. United States, 82 F.2d 638; Appell v. United States, 29 F.2d 279; Mattus v. United States, 11 F.2d 503; 1 Wharton, Criminal Procedure (10th ed.), 51; Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 798, 800-807. Cf. Taylor v. United States, 286 U.S. 1, 6 (1932); Agnello v. United States, supra, at 30. There being probable cause here to believe that a felon was within the house, the entry of the officers was lawful, even though after a complete search the belief was found to be incorrect. Love v. United States, 170 F.2d 32, 33. Such a circumstance "cannot be distinguished on any reasonable basis from the search of the premises of an accused as an incident to the lawful arrest of his person . . . ." Martin v. United States, 183 F.2d 436, 439. Since the entry of petitioner's home was lawful, the officers had a right to seize the contraband property. The only test is the lawfulness of the officers' activity when they come upon the offending property. If the seizure follows a lawful entry to effect an arrest, as here, then it is valid. See Harris v. United States, 331 U.S. 145 (1947), seizure during lawful search incident to arrest for another crime; Steele v. United States, 267 U.S. 498 (1925), seizure during execution of warrant for different property. I believe that these principles control here, and would, therefore, affirm. [357 U.S. 493, 504]

liberal

public_entity

criminal_procedure

1954-088-01

United States Supreme Court PETERS v. HOBBY(1955) No. 376 Argued: April 19, 1955Decided: June 6, 1955 During his employment as a special consultant in a federal agency, petitioner had been twice cleared by the agency's loyalty board. Subsequently, acting solely on its own motion, the Civil Service Commission's Loyalty Review Board (established under Executive Order 9835) determined that there was a reasonable doubt as to petitioner's loyalty and notified him that he was barred from federal service for a period of three years. Thereafter petitioner was removed from his position. By an action in a Federal District Court, petitioner challenged the validity of his removal and debarment from federal employment. Held: 1. This case can be decided without reaching certain constitutional issues raised by petitioner, stemming chiefly from the denial to petitioner of any opportunity to confront and cross-examine his secret accusers. Pp. 337-338. 2. The Loyalty Review Board's action was invalid as beyond the Board's jurisdiction under Executive Order 9835 and was an unwarranted assumption of power. Pp. 338-348. (a) Under the provisions of the Executive Order, the Loyalty Review Board's jurisdiction to review individual cases was limited to appeals from rulings adverse to employees which were referred to the Board by the employees or their departments or agencies. The Board had no authority to review rulings favorable to employees or to adjudicate individual cases on its own motion. Pp. 339-340, 342-344. (b) Regulation 14 of the Loyalty Review Board, to the extent that it purports to authorize the Board to adjudicate individual cases on its own motion and despite a favorable determination below, is invalid as inconsistent with the provisions of Executive Order 9835. Pp. 340-345. (c) While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board's review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable while a verdict of acquittal is not. Pp. 344-345. [349 U.S. 331, 332] (d) The President's failure to express disapproval of Regulation 14 cannot be deemed to constitute acquiescence in it. Pp. 345-347. (e) The order of debarment, moreover, did not comply with Civil Service Rule V, 5.101 (a), which bars an employee from "the competitive service" within three years after "a final determination" that he is disqualified for federal employment on loyalty grounds, because (i) the order was not limited to the "competitive service" but extended to all federal employment, and (ii) it purported to become effective before the employing agency had made any "final determination." Pp. 347-348. 3. Petitioner is entitled to a declaratory judgment that his removal and debarment were invalid and to an order directing the respondent members of the Civil Service Commission to expunge from its records (a) the Loyalty Review Board's finding that there is a reasonable doubt as to petitioner's loyalty, and (b) any ruling that petitioner is barred from federal employment by reason of that finding. Pp. 348-349. 4. Since it appears that the term of petitioner's appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds, his prayer for reinstatement cannot be granted. P. 349. Reversed. Thurman Arnold and Paul A. Porter argued the cause for petitioner. With them on the brief were Abe Fortas and Milton V. Freeman. Assistant Attorney General Burger argued the cause for respondents. With him on the brief were Attorney General Brownell, Assistant Attorney General Tompkins, Assistant Attorney General Rankin, Samuel D. Slade and Benjamin Forman. Briefs of amici curiae urging reversal were filed by Joseph A. Fanelli and Leo F. Lightner for the Engineers and Scientists of America; Herbert Monte Levy and Morris L. Ernst for the American Civil Liberties Union; and Arthur J. Goldberg, Thomas E. Harris and Joseph L. Rauh, Jr. for the Congress of Industrial Organizations. [349 U.S. 331, 333] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner's removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents' motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U.S. App. D.C. 248, 182 F.2d 46, sustained here by an equally divided vote, 341 U.S. 918 . We granted certiorari, 348 U.S. 882 , because the case appeared to present the same constitutional question left unresolved by this Court's action in Bailey v. Richardson, supra. I. The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism, at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner's duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked. [349 U.S. 331, 334] At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953. On March 21, 1947, Executive Order 9835 was issued by the President. 1 It provided that the head of each department and agency in the Executive Branch of the Government "shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency." Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards "for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee . . . on grounds relating to loyalty . . . ." The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized "to review cases involving persons recommended for dismissal . . . by the loyalty board of any department or agency . . . ." The standard for removal prescribed by the Order was whether, "on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States." This standard was amended on April 28, 1951. 2 As amended, the standard to be applied was whether, "on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States." In January 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain's letter was a detailed interrogatory [349 U.S. 331, 335] relating to petitioner's associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal. In May 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Secretary of the Loyalty Review Board advised McElvain that petitioner's case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner's case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board's recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges. On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner's case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner's counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party and also testified concerning the other charges against him. He did not [349 U.S. 331, 336] refuse to answer any question directed to him. Petitioner's testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner's loyalty. Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a "post-audit" of the Agency Board's determination and, to this end, "hold a hearing and reach its own decision." 3 The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for engaging in the activities and associations which were the subject of the charges, and answered all questions put to him by the Board. In support of petitioner's testimony, five witnesses stated their long acquaintance with petitioner and their firm conviction of petitioner's loyalty. 4 In addition to this evidence, the record before the Board contained information supplied by informants whose identity was not disclosed to petitioner. The identity of one or more, but not all, of these informants was known to the Board. The information given by such informants had not been given under oath. The record also contained the evidence adduced by petitioner at the previous hearing. On this record, the Board determined that "on all the [349 U.S. 331, 337] evidence, there is a reasonable doubt as to Dr. Peters' loyalty to the Government of the United States." By letter of May 22, 1953, the Chairman of the Board advised petitioner of the Board's finding. The letter further stated that respondent Hobby had been notified of the decision and that petitioner had "been barred from the Federal service for a period of three years from May 18, 1953, and any and all pending applications or existing eligibilities are cancelled." The order of debarment was made by the Board on behalf of the Civil Service Commission, composed of respondents Young, Moore, and Lawton. 5 Following his removal and after an unsuccessful attempt to obtain a rehearing, petitioner brought the instant suit, naming each of the respondents as a defendant. II. In his complaint, petitioner contends that the action taken against him was "in violation of Executive Order 9835 and the Constitution of the United States . . . ." In support of his contention that the action violated the Executive Order, he makes the allegation, among others, that the Loyalty Review Board "exercised power beyond its power `to make advisory recommendations . . . to the head of the . . . agency', as defined by Executive Order 9835, Part III, 1a . . . ." On the constitutional level, petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and debarment deprived him "of liberty and property without due process of law in that they branded him as a person disloyal to his country, arbitrarily, without basis in fact, and without a fair procedure and hearing." In addition, he alleges that "The imposition of the penalty of ineligibility for government service [349 U.S. 331, 338] constituted a violation of the prohibition against bills of attainder and ex post facto laws by punishing the plaintiff by declaring him ineligible to serve the Government without a judicial trial or a fair administrative hearing . . . ." Finally, petitioner alleges that his removal and debarment, solely on the basis of his political opinions, violated his right to freedom of speech. In this Court, petitioner urges us to decide the case on the constitutional issues. These issues, if reached by the Court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel. Compare Wieman v. Updegraff, 344 U.S. 183 ; United States v. Lovett, 328 U.S. 303 ; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 . And note this Court's division in Bailey v. Richardson, supra. We find, however, that the case can be decided without reaching the constitutional issues. From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 . Applying this rule to the instant case, we must at the outset determine whether petitioner's removal and debarment were effected in accord with Executive Order 9835. On consideration of this question, we conclude that the Loyalty Review Board's action was so patently in violation of the Executive Order - in fact, beyond the Board's delegated jurisdiction under the Order - that the constitutionality of the Order itself does not come into issue. 6 [349 U.S. 331, 339] III. The power of the Loyalty Review Board to adjudicate individual cases is set forth specifically in 1a of Part III of the Order: "The Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. Such cases may be referred to the Board either by the employing department or agency, or by the officer or employee concerned." Similarly, 3 of Part II, which prescribes the procedures to be followed in loyalty cases under the Order, provides: "A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency . . . and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission's Loyalty Review Board, hereinafter provided for, for an advisory recommendation." The authority thus conferred on the Loyalty Review Board was limited to "cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency . . . ." And, even as to these cases, the Loyalty Review Board was denied any power to undertake review on its own motion; only the employee recommended for dismissal, or his department or agency, could refer such a case to the Loyalty Review Board. [349 U.S. 331, 340] In petitioner's case, the Board failed to respect either of these limitations. Petitioner had been twice cleared by the Agency Board and hence did not fall in the category of "persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency." Moreover, petitioner's case was never referred to the Loyalty Review Board by petitioner or the Agency. Instead, the Loyalty Review Board, acting solely on its own motion, undertook to "hold a hearing and reach its own decision." On both grounds, the Board's action was plainly beyond its jurisdiction unless such action was authorized by some other provision in the Order. Section 1 of Part III also provides: "b. The Board shall make rules and regulations, not inconsistent with the provisions of this order, deemed necessary to implement statutes and Executive orders relating to employee loyalty. "c. The Loyalty Review Board shall also: "(1) Advise all departments and agencies on all problems relating to employee loyalty. "(2) Disseminate information pertinent to employee loyalty programs. "(3) Coordinate the employee loyalty policies and procedures of the several departments and agencies. "(4) Make reports and submit recommendations to the Civil Service Commission for transmission to the President from time to time as may be necessary to the maintenance of the employee loyalty program." Acting under subsection (b), the Board promulgated detailed regulations, effective December 14, 1947, elaborating its powers under the Order. 7 The regulations [349 U.S. 331, 341] distinguished between two types of proceedings in individual cases. The first dealt with appeals from adverse decisions. 8 The second, described in Regulation 14, claimed for the Board a very different function. 9 As amended on January 22, 1952, Regulation 14 provided: 10 "Post-audit and review of files. (a) The Board, or an executive committee of the Board, shall, as deemed necessary from time to time, cause post-audits to be made of the files on loyalty cases decided by the employing department or agency, or by a regional loyalty board. "(b) The Board or an executive committee of the Board, or a duly constituted panel of the Board, shall have the right, in its discretion to call up for review any case decided by any department or agency loyalty board or regional loyalty board, or by any head of an employing department or agency, even though no appeal has been taken. Any such review shall be made by a panel of the Board, and the panel, whether or not a hearing has been held in the case, may affirm the procedural method followed and the action taken, or remand the case with appropriate instructions to the agency or regional loyalty board concerned for hearing or for such further action or procedure as the panel may determine. "(c) If a panel reviews a record on post-audit and reaches the conclusion that the determination made below does not fully recognize that it is of `vital importance' as set forth in Executive Order 9835 `that persons employed in the Federal service be [349 U.S. 331, 342] of complete and unswerving loyalty to the United States,' then the panel may call up the case for a hearing, and after such hearing may affirm or reverse the original determination or decision. Nevertheless, it must always be remembered that while it is important that maximum protection be afforded the United States against infiltration of disloyal persons into the ranks of its employees, equal protection must be afforded loyal employees from unfounded accusations of disloyalty." In undertaking to "hold a hearing and reach its own decision" in petitioner's case, the Board relied on Regulation 14 as the source of its authority. This regulation, however, is valid only if it is "not inconsistent with the provisions of this order." The Board's "post-audit" function, when used to survey the operation of the loyalty program and to insure a uniformity of procedures in the various loyalty boards, might well be justified under the Board's powers to "Advise all departments and agencies on all problems relating to employee loyalty" and "Coordinate the employee loyalty policies and procedures of the several departments and agencies." But the regulation did not restrict the "post-audit" function to advice and coordination. Rather, it purported to allow the Board "to call up for review any case . . . even though no appeal has been taken" and to hold a new hearing and "after such hearing [to] affirm or reverse the original determination or decision." The Board thus sought to do by regulation precisely what it was not permitted to do under the Order. Although the Order limited the Board's jurisdiction to appeals from adverse rulings, the regulation asserted authority over appeals from favorable rulings as well; and although the Order limited the Board's jurisdiction to appeals referred [349 U.S. 331, 343] to the Board by the employee or his department or agency, the regulation asserted authority in the Board to adjudicate individual cases on its own motion. To this extent the regulation must fall. See, e. g., Addison v. Holly Hill Fruit Products, 322 U.S. 607, 616 -618, and Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 296 -297. Our interpretation of the language of the Order is confirmed by The Report of the President's Temporary Commission on Employee Loyalty, released by the President on March 22, 1947, simultaneously with the Order. Four months before, the Commission had been established "to inquire into the standards, procedures, and organizational provisions for (a) the investigation of persons who are employed by the United States Government or are applicants for such employment, and (b) the removal or disqualification from employment of any disloyal or subversive person." 11 In conducting its investigation, the Commission sought suggestions from 50 selected government agencies. The replies revealed general agreement "that the employing agency be responsible for the removal of its own employees." 12 But a substantial number of the replies indicated: 13 "(1) that there should be established an independent over-all centralized authority acting solely for and on behalf of the President in the matter of the removal of disloyal employees; or (2) that the original hearing in loyalty cases should be within the employing agency, subject to a right of appeal to a centralized [349 U.S. 331, 344] agency established with a power to review de novo; or (3) that the overall agency be established with advisory powers only." Of these three proposals, the first was flatly rejected by the Commission, which instead urged the establishment of a centralized agency combining elements of the second and third. The Commission thought it "imperative that the head of each department or agency be solely responsible for his own loyalty program." 14 On the other hand, "so that the loyalty procedures operative in each of the departments and agencies may be properly coordinated . . .," the Commission recognized "that a central review board should be created with definite advisory responsibilities in connection with the loyalty program." 15 These "advisory responsibilities" were envisaged as "similar to those of a clearing house." 16 But, in addition, the board was to be authorized to review decisions adverse to employees, when referred to the board by the employee or the employing agency. 17 Nowhere in the report was it even remotely suggested that the board was to have general jurisdiction to adjudicate individual cases; on the contrary, as already noted, the Commission expressly disapproved such a proposal. The Commission's recommendations, with only slight changes in language, were adopted in the provisions of the Order designating the functions of the Loyalty Review Board. 18 While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board's review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a [349 U.S. 331, 345] verdict of guilty is appealable while a verdict of acquittal is not. 19 This safeguard was one of the few, and perhaps one of the most important, afforded an accused employee under the Order. Its effect was to leave the initial determination of his loyalty to his co-workers in the department - to his peers, as it were - who knew most about his character and his actions and his duties. He was thus assured that his fate would not be decided by political appointees who perhaps might be more vulnerable to the pressures of heated public opinion. To sanction the abrogation of this safeguard through Regulation 14, in the face of the Order's language and the Commission's report, would be to sanction administrative lawlessness. Agencies, whether created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority. Compare United States v. Wickersham, 201 U.S. 390, 398 . It is urged, however, that the President's failure to express his disapproval of Regulation 14 must be deemed to constitute acquiescence in it. From this, it is contended that the President thus impliedly expanded the Loyalty Review Board's powers under the Order. We cannot indulge in such fanciful speculation. Nothing short of explicit Presidential action could justify a conclusion that the limitations on the Board's powers had been eliminated. No such action by the President has been brought to our attention. There is, in fact, no evidence that the President even knew of the Board's [349 U.S. 331, 346] practice prior to April 27, 1953, three weeks after the Board had notified petitioner of its intention to "hold a hearing and reach its own decision." And knowledge of the practice can hardly be imputed to him in view of the relatively small number of cases - only 20 - in which the Board reversed favorable determinations over its 6-year life. 20 On April 27, 1953, the President issued Executive Order 10450, revoking Executive Order 9835 and establishing a new loyalty program. 21 Executive Order 10450 by its own terms did not take effect until 30 days later on May 27, 1953. Although petitioner's case was heard and determined by the Loyalty Review Board during this 30-day period and hence was not subject to Executive Order 10450, the Government contends that 11 evidences knowledge and approval of Regulation 14. 22 [349 U.S. 331, 347] Section 11, however, did no more than recognize that cases under Regulation 14 might be pending on the effective date and authorize their determination thereafter. And, even as to these cases, 11 did not authorize the Board to recommend dismissal; at most the Board could remand the cases to the departments or agencies for reconsideration. With respect to cases determined prior to the effective date - such as petitioner's - 11 surely affords no basis for divining a Presidential intention to authorize the Board to disregard its previously defined jurisdictional boundaries. Particularly is this so where, as here, substantial rights affecting the lives and property of citizens are at stake. This Court has recognized that "a badge of infamy" attaches to a public employee found disloyal. Wieman v. Updegraff, 344 U.S. 183, 191 . The power asserted by the Board to impose such a badge on petitioner cannot be supported on so tenuous a theory as that pressed upon us. Nor was the adjudication of petitioner's case, on its own motion and despite a favorable determination by the Agency Board, the only unwarranted assumption of power by the Loyalty Review Board. In cancelling petitioner's eligibility from "the Federal service" for a period of three years, the Board purported to act under Civil Service Rule V, 5.101 (a), which bars an employee from "the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty . . . ." 23 The Board's order of debarment, however, was not limited to "the competitive service" but extended to all federal employment. 24 [349 U.S. 331, 348] And although such a "final determination" could be made only by the employing agency, the Board did not wait for respondent Hobby to act on its recommendation. Petitioner's debarment was made effective on May 18, 1953, four days before the Chairman of the Board wrote petitioner of the Board's determination and nearly four weeks before the Department took action to remove petitioner from his position. The Board's haste can be understood only in terms of its announced intention to deprive agencies of all discretion to determine whether the Board's recommendations should be accepted. 25 IV. There only remains for consideration the question of relief. Initially petitioner is entitled to a declaratory judgment that his removal and debarment were invalid. [349 U.S. 331, 349] He is further entitled to an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board's finding that there is a reasonable doubt as to petitioner's loyalty and to expunge from its records any ruling that petitioner is barred from federal employment by reason of that finding. His prayer for reinstatement, however, cannot be granted, since it appears that the term of petitioner's appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds. The judgment below is reversed and the cause is remanded to the District Court for entry of a decree in conformity with this opinion. Reversed. Footnotes [Footnote 1 12 Fed. Reg. 1935. [Footnote 2 Executive Order 10241, 16 Fed. Reg. 3690. [Footnote 3 Authority for such action was purportedly based on Regulation 14 of the regulations of the Loyalty Review Board. 17 Fed. Reg. 631. [Footnote 4 Three of the five - a former President of Yale University, a former dean of the Yale Medical School, and a federal circuit judge - had given similar testimony at the previous hearing. [Footnote 5 Authority for the order of debarment was purportedly based on Civil Service Rule V, 5.101 (a), 5 CFR (1954 Supp.) 5.101 (a). [Footnote 6 The question of the Board's jurisdiction was, on request of the Court, argued and briefed. Compare Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 132 . [Footnote 7 13 Fed. Reg. 253 et seq. [Footnote 8 Id., at 255, 5 CFR 210.9. [Footnote 9 13 Fed. Reg. 255. [Footnote 10 17 Fed. Reg. 631. Regulation 14 had previously been amended on December 17, 1948. 13 Fed. Reg. 9366, 5 CFR 210.14. [Footnote 11 Executive Order 9806, 11 Fed. Reg. 13863. The Commission was composed of officials of the Civil Service Commission and the Departments of Justice, State, Treasury, War, and Navy. [Footnote 12 The Report of the President's Temporary Commission on Employee Loyalty (1947) 14. [Footnote 13 Id., at 15. [Footnote 14 Id., at 26. [Footnote 15 Id., at 27. [Footnote 16 Id., at 26. [Footnote 17 Id., at 35-36. [Footnote 18 See Bontecou, The Federal Loyalty-Security Program (1953), 29. [Footnote 19 See the Commission's report, supra, note 12, at 30: "The standards must be specific enough to assure that innocent employees will not fall within the purview of the disloyalty criteria. Every mature consideration was invoked by the Commission to afford maximum protection to the government from disloyal employees while safeguarding the individual employee with a maximum protection from ill-advised accusations of disloyalty." [Footnote 20 As of June 30, 1953, the Board had undertaken in only 58 cases to "hold a hearing and reach its own decision" despite a favorable determination below. Annual Reports of the Civil Service Commission: 1948 (p. 18), 1949 (p. 37), 1950 (pp. 33-34), 1951 (p. 36), 1952 (p. 56), 1953 (p. 31). Of these 58 cases, 20 resulted in reversal of the favorable determination. 1953 Report, p. 31, n. 1. Of these 20 cases, 12 - including petitioner's - arose in the fiscal year immediately preceding June 30, 1953. Id., at 31. In the remaining 38 cases - those in which the Board did not reverse the favorable determination - either the Board affirmed the favorable determination or the employee resigned prior to the scheduled hearing. Thus in the 1953 fiscal year, of the 22 hearings scheduled, 8 resulted in affirmance and 2 were cancelled because of resignation. Ibid. [Footnote 21 18 Fed. Reg. 2489. [Footnote 22 Section 11 provides in pertinent part: "On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such [349 U.S. 331, 347] Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order." [Footnote 23 Italics added. 5 CFR (1954 Supp.) 5.101 (a). [Footnote 24 Approximately 15% of all federal employees are excepted from "the competitive service." 1954 Annual Report, United States Civil Service Commission, p. 10. Petitioner himself was not employed in "the competitive service." His position was classified in "Schedule A," an exempt category. 5 CFR 6.101 (n); 5 CFR 6.1 (d). [Footnote 25 On December 17, 1948, the Board issued the following directive, entitled "Legal effect of advisory recommendations," to the departments and agencies covered by the Order: "The President expects that loyalty policies, procedures, and standards will be uniformly applied in the adjudication of loyalty cases by the several agencies, and the responsibility for coordinating the program and assuring uniformity has been placed in the Loyalty Review Board. The recommendations of the Civil Service Commission in cases of employees covered by section 14 of the Veterans' Preference Act of 1944 are mandatory, and the loyalty of persons not covered by section 14 should be judged by the same standards. Therefore, if uniformity is to be attained it is necessary that the head of an agency follow the recommendation of the Loyalty Review Board in all cases." (Italics added.) 13 Fed. Reg. 9372, 5 CFR 220.4 (d). See Bontecou, The Federal Loyalty-Security Program (1953), 54-55. Compare Kutcher v. Gray, 91 U.S. App. D.C. 266, 199 F.2d 783. MR. JUSTICE BLACK, concurring. I would prefer to decide this case on the constitutional questions discussed by MR. JUSTICE DOUGLAS or on some of the other constitutional questions necessarily involved. See United States v. Lovett, 328 U.S. 303 . See my dissents in Dennis v. United States, 341 U.S. 494, 579 -581; Communications Assn. v. Douds, 339 U.S. 382, 445 -453. See also my concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142 -149. I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-constitutional grounds. See Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. But this generally accepted practice should not be treated as though it were an inflexible rule to be inexorably followed under all circumstances. See Youngstown Co. v. Sawyer, 343 U.S. 579, 584 -585. Here, as in the Youngstown case, I think it would be better judicial practice to reach and decide the constitutional issues, although I agree with the Court that the Presidential Order can justifiably be construed [349 U.S. 331, 350] as denying the Loyalty Review Board the power exercised in this case. For this reason I join the opinion of the Court. But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any Act of Congress. That order and others associated with it embody a broad, far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President. Youngstown Co. v. Sawyer, 343 U.S. 579 . I have thought it necessary to add these statements to the Court's opinion in order that the President's power to issue the order might not be considered as having been decided sub silentio. MR. JUSTICE DOUGLAS, concurring. With all deference, I do not think we can avoid the constitutional issue in this case. The most that can be said is that the terms of the Executive Order are ambiguous. The construction urged by the Attorney General is buttressed by a history of administrative practice, with case after case being reviewed by the Board in the precise manner of this one. The question of construction of the Executive Order was so well settled that neither the Government nor Dr. Peters suggested the absence of authority in the Review Board to take jurisdiction of this case on its own motion. I agree that it had such authority. It, therefore, becomes necessary for me to reach the constitutional issue. Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned [349 U.S. 331, 351] him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory. Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work - things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government. 1 It [349 U.S. 331, 352] has touched countless hundreds of men and women and ruined many. It is an un-American practice which we should condemn. It deprives men of "liberty" within the meaning of the Fifth Amendment, for one of man's most precious liberties is his right to work. When a man is deprived of that "liberty" without a fair trial, he is denied due process. If he were condemned by Congress and made ineligible for government employment, he would suffer a bill of attainder, outlawed by the Constitution. See United States v. Lovett, 328 U.S. 303 . An administrative agency - the creature of Congress - certainly cannot exercise powers that Congress itself is barred from asserting. See the opinion of MR. JUSTICE BLACK in Anti-Fascist Committee v. McGrath, 341 U.S. 123, 144 -146. 2 Those who see the force of this position counter by saying that the Government's sources of information must be protected, if the campaign against subversives is to be successful. The answer is plain. If the sources of information need protection, they should be kept secret. But once they are used to destroy a man's reputation and deprive him of his "liberty," they must be put to the test of due process of law. The use of faceless informers is wholly at war with that concept. When we relax our standards to accommodate the faceless informer, we violate our basic constitutional guarantees and ape the tactics of those whom we despise. [Footnote 1 Berle, The 20th Century Capitalist Revolution (1954), pp. 92-93, traces the impact of the loyalty program on employees of corporations having contracts with the Government: "To begin, let us deal with a situation in which a powerful corporation is under a contract duty to the United States government, or some agency of it, to fire or decline to hire individuals designated to them as possible security risks. In practice they mean that a man who may have been employed for years, being suspect for some reason, is designated to the appropriate authorities [of the corporation]. Things then happen to him rapidly. All he knows is that he is called into the office one day and told that he is discharged - or at best transferred to some far less desirable job. If the ban is complete, and he lives in any of the cities in which the corporation is a preponderant employer, the consequences are extreme. The main avenue of employment is closed to him. He must move into some [349 U.S. 331, 352] other city and find some other job if he can. Since the same ban will probably follow him into any other plant engaged in defense orders, the going is rough. If he is a young man, he winds up in some recognizably marginal job, such as dishwashing or unskilled labor. If he is a man in middle life, he may end on the industrial scrap heap. Probably he never discovers exactly what hit him. The personnel people of the corporations do not confide to him their reasons for action." [Footnote 2 See Berle, op. cit. supra, p. 98. [349 U.S. 331, 353] MR. JUSTICE REED, with whom MR. JUSTICE BURTON joins, dissenting. I agree with MR. JUSTICE DOUGLAS that the Court's reason for annulling Dr. Peters' discharge is not sound. In addition to the reasons stated by him, I find other factors that, to me, strengthen the view that the action of the Loyalty Review Board was not invalid. However, I do not express any opinion on the constitutional problems which might ultimately be faced if the Court had found that the Review Board's action and all other nonconstitutional aspects of the case were proper. Executive Order No. 9835 was issued by the President on March 21, 1947. By this order he established the Loyalty Review Board and granted to it certain rule-making powers. Part III, 1 b, Exec. Order No. 9835. The Review Board's first promulgation of regulations pursuant to this power included the original of Regulation 14, which provided that the Board had the right "on its own motion" to review the decisions of the department or agency loyalty boards "even though no appeal has been taken." 13 Fed. Reg. 255 (adopted December 17, 1947). Thus, from the very outset, the procedure followed by the Review Board in reviewing these cases was part of the loyalty program. Furthermore, from 1948 through 1952, in each of the Annual Reports of the Civil Service Commission, the results of the Review Board's post-audit actions under Regulation 14 were unmistakably recorded. 1 These reports were submitted to the President pursuant to statutory requirement. 2 In addition to stating annual data on general post-audit reviews (more than 5,000 in 1952), the reports clearly indicated that the Board was rehearing cases on its own motion, such as the present, [349 U.S. 331, 354] where the decision of the agency loyalty board had been favorable to the employee. 3 The Court places emphasis on the number of cases so handled, but this hardly seems relevant in view of the fact that the reports indisputably conveyed to any reader the fact of what the Board was doing, whether in 1 case or 100. The Court in this case is reviewing a Presidential Order and rules made thereunder. I do not find it as easy as does the majority to analogize such review to judicial review of congressional Acts and administrative interpretation of such Acts. Certain differences are immediately apparent. The Executive Branch is traditionally free to handle its internal problems of administration in its own way. The legality of judicial review of such intra-executive operations as this is, for me, not completely free from doubt. However, construing the Loyalty Order as the Court does, like a statute, the contemporaneous construction of the Order by the Review Board in promulgating Regulation 14, and the action of the President in allowing the regulation and practices thereunder to continue after having notice from the Civil Service Commission reports, lead me to conclude that the Board by Regulation 14 [349 U.S. 331, 355] correctly interpreted the Presidential intention conveyed by Executive Order 9835. Such reasonable interpretation promptly adopted and long-continued by the President and the Board should be respected by the courts. That has been judicial practice heretofore. 4 Nor does comparison of Regulation 14 with the Order show, in my opinion, that the Regulation is "inconsistent with" any of the provisions of the Order. Rather the power of the Review Board to review under Regulation 14 appears to be supplemental to the other procedures which the Order itself prescribes. Therefore Regulation 14 constituted merely an implementation of the Order which the Review Board is specifically authorized to make under Part III, 1b, set out in the Court's opinion, p. 340. Neither of the parties has contended otherwise before this Court. They also agree that the Board's action was valid. Undoubtedly the President had knowledge and approved of the Regulation. This is shown by his specific recognition of such cases in his own 1953 Order. 5 That Order, while not controlling Dr. Peters' case directly, since it did not become effective until after the Review Board had heard his case, recognized that the Review Board had been and could review decisions which had been favorable to an employee. This action by the President amounts to approval of the practice of the Review Board under Regulation 14. I am therefore compelled to conclude that the action of the Review Board in rendering its advisory recommendation in this case was not invalid. [349 U.S. 331, 356] The Court seems to imply, however, that the Review Board's decision was more than merely a recommendation to the head of the department employing Dr. Peters and that the Board, in another "unwarranted assumption of power," by its letter of May 22, 1953, erroneously separated Dr. Peters from the government service. Nowhere in the majority opinion does it appear that Secretary Hobby or the Department she heads, and for whom Dr. Peters worked, ever took any action in regard to the Review Board's recommendation. The reference to this May 22 letter is apt to mislead, as it has nothing to do with the Department's discharge of Dr. Peters, the validity of which is the issue in this case. I agree that the Review Board's letter of May 22, 1953, may have been erroneous. Under Civil Service Rule V, 5.101 (a), 6 federal employees found disqualified for federal employment because of a reasonable doubt as to their loyalty are barred from the federal competitive service for three years. This "final determination" as to loyalty is and can be made only by the head of a department or agency on recommendation of a loyalty board. 7 [349 U.S. 331, 357] When the head of a department acts on the Review Board's recommendation, 5.101 (a) becomes effective. The Review Board, acting as an agency of the Civil Service Commission, then notifies the employee of his disqualification. Assuming that the Review Board was not notified of any "final determination" prior to the letter of May 22, it was sent erroneously. However, it amounted to no more than a nullity and Dr. Peters lost nothing. It is undisputed that on June 12, 1953, the Surgeon General of the Public Health Service, a subordinate of Secretary Hobby, "notified plaintiff of his separation from his position as Special Consultant." 8 This was the notification which effectively separated him from government service and which is the basis for his complaint for wrongful discharge. Limiting myself to issues decided by the majority, I dissent. [Footnote 1 Annual Reports of the Civil Service Commission: 1948 (p. 18); 1949 (pp. 37-38); 1950 (pp. 33-34); 1951 (p. 36); 1952 (p. 56). [Footnote 2 5 U.S.C. 633 (5). [Footnote 3 "During the fiscal year 1952, the Loyalty Review Board post-audited 5,335 cases which had been decided favorably by agencies and regional loyalty boards. The Board authorized the closing of 5,259 of these cases upon finding that proper procedures had been followed. In 66 other cases, however, further processing was necessary to ensure compliance with standard procedures, and so the cases were remanded to boards in the agencies or in civil-service regions. "The Board scheduled review of the other 10 cases on their merits and offered to hear the individuals concerned before rendering its decision on their cases. One case was closed as incomplete when the individual resigned. Action on the other 9 cases was completed; since this type of review of a case under Regulation 14 is similar to the consideration given an appeal, the cases of these individuals are included in the following section, which shows action on appeals received by the Loyalty Review Board." 69th Annual Report (1952), Civil Service Commission, p. 56. [Footnote 4 Cf. United States v. American Trucking Assns., 310 U.S. 534, 549 ; Bowles v. Seminole Rock Co., 325 U.S. 410, 413 -414; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 ; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 313 , 315; Helvering v. Winmill, 305 U.S. 79, 83 . [Footnote 5 Exec. Order No. 10450, 11, promulgated April 27, 1953, to become effective May 27, 1953. Set out in the Court's opinion, n. 22. [Footnote 6 "Persons disqualified for appointment. . . . Provided, That no person shall be admitted to competitive examination, nor shall he be employed in any position in the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty to the Government of the United States." 5 CFR, 1949 ed. (1954 Cum. Supp.), 5.101 (a). [Footnote 7 Exec. Order No. 9835, Part II: "1. The head of each department and agency in the executive branch of the Government shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency. . . . . . "2. The head of each department and agency shall appoint one or more loyalty boards, . . . for the purpose of hearing loyalty cases arising within such department or agency and making recommendations [349 U.S. 331, 357] with respect to the removal of any officer or employee of such department or agency on grounds relating to loyalty, and he shall prescribe regulations for the conduct of the proceedings before such boards. . . . . . "3. A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency or to such person or persons as may be designated by such head, under such regulations as may be prescribed by him, and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission's Loyalty Review Board, hereinafter provided for, for an advisory recommendation." Id., Part III, 1: "a. The [Review] Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. . . ." [Footnote 8 Petitioner's complaint, § 27. [349 U.S. 331, 358]

liberal

public_entity

first_amendment

2004-075-01

United States Supreme Court VAN ORDEN v. PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al.(2005) No. 03-1500 Argued: March 2, 2005Decided: June 27, 2005 Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U.S.C. §1983 suit seeking a declaration that the monument's placement violates the First Amendment's Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held:The judgment is affirmed. 351 F.3d 173, affirmed. The Chief Justice, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, concluded that the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Reconciling the strong role played by religion and religious traditions throughout our Nation's history, see School Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-213, with the principle that governmental intervention in religious matters can itself endanger religious freedom requires that the Court neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion, e.g., Zorach v. Clauson, 343 U.S. 306, 313-314. While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U.S. 602, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on its capitol grounds. Instead, the analysis should be driven by both the monument's nature and the Nation's history. From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Lynch v. Donnelly, 465 U.S. 668, 674. Texas' display of the Commandments on government property is typical of such acknowledgments. Representations of the Commandments appear throughout this Court and its grounds, as well as the Nation's Capital. Moreover, the Court's opinions, like its building, have recognized the role the Decalogue plays in America's heritage. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442, 462. While the Commandments are religious, they have an undeniable historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See, e.g., Lynch v. Donnelly, supra, at 680, 687. There are, of course, limits to the government's display of religious messages or symbols. For example, this Court held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U.S. 39, 41-42. However, neither Stone itself nor subsequent opinions have indicated that Stone's holding would extend beyond the context of public schools to a legislative chamber, see Marsh v. Chambers, 463 U.S. 783, or to capitol grounds. Texas' placement of the Commandments monument on its capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, petitioner here apparently walked by the monument for years before bringing this suit. Schempp, supra, and Lee v. Weisman, 505 U.S. 577, distinguished. Texas has treated her capitol grounds monuments as representing several strands in the State's political and legal history. The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause. Pp.3-12. Justice Breyer concluded that this is a difficult borderline case where none of the Court's various tests for evaluating Establishment Clause questions can substitute for the exercise of legal judgment. See, e.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203, 305 (Goldberg, J., concurring). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the First Amendment's Religion Clauses--to assure the fullest possible scope of religious liberty and tolerance for all, to avoid the religious divisiveness that promotes social conflict, and to maintain the separation of church and state. No exact formula can dictate a resolution to fact-intensive cases such as this. Despite the Commandments' religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law. The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message. The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged (until the single legal objection raised by petitioner). Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion. See ibid. The public visiting the capitol grounds is more likely to have considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage. For these reasons, the Texas display falls on the permissible side of the constitutional line. Pp.1-8. Rehnquist, C.J., announced the judgment of the Court and delivered an opinion, in which Scalia, Kennedy, and Thomas, JJ., joined. Scalia, J., and Thomas, J., filed concurring opinions. Breyer, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. O'Connor, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justice Scalia, Justice Kennedy, and Justice Thomas join. The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does. The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity." Tex. H. Con. Res. 38, 77th Leg. (2001).1 The monolith challenged here stands 6-feet high and 3-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961." App. to Pet. for Cert. 21. The legislative record surrounding the State's acceptance of the monument from the Eagles--a national social, civic, and patriotic organization--is limited to legislative journal entries. After the monument was accepted, the State selected a site for the monument based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, the dedication of which was presided over by two state legislators. Petitioner Thomas Van Orden is a native Texan and a resident of Austin. At one time he was a licensed lawyer, having graduated from Southern Methodist Law School. Van Orden testified that, since 1995, he has encountered the Ten Commandments monument during his frequent visits to the Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building. Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities under Rev. Stat. §1979, 42 U.S.C. §1983, seeking both a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal. After a bench trial, the District Court held that the monument did not contravene the Establishment Clause. It found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency. The District Court also determined that a reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion. The Court of Appeals affirmed the District Court's holdings with respect to the monument's purpose and effect. 351 F.3d 173 (CA5 2003). We granted certiorari, 543 U.S. ___ (2004), and now affirm. Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history. As we observed in School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963): "It is true that religion has been closely identified with our history and government.... The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.... It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are 'earnestly praying, as ... in duty bound, that the Supreme Lawgiver of the Universe ... guide them into every measure which may be worthy of his [blessing ....]'" Id., at 212-213.2 The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom. This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation's heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage: "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.... [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence." Zorach v. Clauson, 343 U.S. 306, 313-314 (1952). See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845-846 (1995) (warning against the "risk [of] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires").3 These two faces are evident in representative cases both upholding4 and invalidating5 laws under the Establishment Clause. Over the last 25 years, we have sometimes pointed to Lemon v. Kurtzman, 403 U.S. 602 (1971), as providing the governing test in Establishment Clause challenges.6 Compare Wallace v. Jaffree, 472 U.S. 38 (1985) (applying Lemon), with Marsh v. Chambers, 463 U.S. 783 (1983) (not applying Lemon). Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as "no more than helpful signposts." Hunt v. McNair, 413 U.S. 734, 741 (1973). Many of our recent cases simply have not applied the Lemon test. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Good News Club v. Milford Central School, 533 U.S. 98 (2001). Others have applied it only after concluding that the challenged practice was invalid under a different Establishment Clause test. Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation's history. As we explained in Lynch v. Donnelly, 465 U.S. 668 (1984): "There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Id., at 674. For example, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclamation to "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many and signal favors of Almighty God." 1 Annals of Cong. 90, 914. President Washington's proclamation directly attributed to the Supreme Being the foundations and successes of our young Nation: "Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us." 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1899). Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that "religion has been closely identified with our history and government," School Dist. of Abington Township v. Schempp, 370 U.S. 421, 434 (1962).7 This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 366 U.S. 420, 431-440 (1961); see id., at 470-488 (separate opinion of Frankfurter, J.). In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgments of the role played by the Ten Commandments in our Nation's heritage are common throughout America. We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets. Similar acknowledgments can be seen throughout a visitor's tour of our Nation's Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress' Jefferson Building since 1897. And the Jefferson Building's Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled "The Spirit of Law" has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives.9 Our opinions, like our building, have recognized the role the Decalogue plays in America's heritage. See, e.g., McGowan v. Maryland, 366 U.S., at 442; id., at 462 (separate opinion of Frankfurter, J.).10 The Executive and Legislative Branches have also acknowledged the historical role of the Ten Commandments. See, e.g., Public Papers of the Presidents, Harry S. Truman, 1950, p. 157 (1965); S. Con. Res. 13, 105th Cong., 1st Sess. (1997); H. Con. Res. 31, 105th Cong., 1st Sess. (1997). These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgments. Of course, the Ten Commandments are religious--they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See Lynch v. Donnelly, 397 U.S. 664, 676-678 (1970). There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U.S. 39 (1980) (per curiam). In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose. Id., at 41. As evidenced by Stone's almost exclusive reliance upon two of our school prayer cases, id., at 41-42 (citing School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), and Engel v. Vitale, 370 U.S. 421 (1962)), it stands as an example of the fact that we have "been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools," Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987). Compare Lee v. Weisman, 505 U.S. 577, 596-597 (1992) (holding unconstitutional a prayer at a secondary school graduation), with Marsh v. Chambers, supra (upholding a prayer in the state legislature). Indeed, Edwards v. Aguillard recognized that Stone--along with Schempp and Engel--was a consequence of the "particular concerns that arise in the context of public elementary and secondary schools." 482 U.S., at 584-585. Neither Stone itself nor subsequent opinions have indicated that Stone's holding would extend to a legislative chamber, see Marsh v. Chambers, supra, or to capitol grounds.11 The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. Texas has treated her Capitol grounds monuments as representing the several strands in the State's political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas' display of this monument violates the Establishment Clause of the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered. THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice Scalia, concurring. I join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence--or at least the Establishment Clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied--the central relevant feature of which is that there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See McCreary County v. American Civil Liberties Union of Ky., post, at 1-11 (Scalia, J., dissenting). THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice Thomas, concurring. The Court holds that the Ten Commandments monument found on the Texas State Capitol grounds does not violate the Establishment Clause. Rather than trying to suggest meaninglessness where there is meaning, The Chief Justice rightly recognizes that the monument has "religious significance." Ante, at 10. He properly recognizes the role of religion in this Nation's history and the permissibility of government displays acknowledging that history. Ante, at 6-8. For those reasons, I join The Chief Justice's opinion in full. This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges,** and return to the original meaning of the Clause. I have previously suggested that the Clause's text and history "resis[t] incorporation" against the States. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 46, (2004) (opinion concurring in judgment); see also Zelman v. Simmons-Harris, 536 U.S. 639, 677-680, and n. 3 (2002) (opinion concurring). If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue. Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U.S. ___ , ___, n.3 (2005) (slip op., at 3, n.3) (Thomas, J., concurring), our task would be far simpler if we returned to the original meaning of the word "establishment" than it is under the various approaches this Court now uses. The Framers understood an establishment "necessarily [to] involve actual legal coercion." Newdow, supra, at 52 (Thomas, J., concurring in judgment); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) ("The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty"). "In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers." Cutter, supra, at ___ (slip op., at 4) (Thomas, J., concurring). And "government practices that have nothing to do with creating or maintaining ... coercive state establishments" simply do not "implicate the possible liberty interest of being free from coercive state establishments." Newdow, supra, at 53 (Thomas, J., concurring injudgment). There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause. Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such challenges. This Court's precedent elevates the trivial to the proverbial "federal case," by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused--an observation that is hardly new. See Newdow, supra, at 45, n.1 (Thomas, J., concurring in judgment) (collecting cases). First, this Court's precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch high crucifix. Granzeier v. Middleton, 955 F.Supp. 741, 743, and n.2, 746-747 (ED Ky. 1997), aff'd on other grounds, 173 F.3d 568, 576 (CA6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F.Supp. 2d 1202, 1204-1205, 1215-1217 (CD Cal. 2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g., Robinson v. Edmond, 68 F.3d 1226 (CA10 1995); Murray v. Austin, 947 F.2d 147 (CA5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F.2d 777 (CA10 1985) (en banc). In every instance, the litigants are mere "[p]assersby ... free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 664 (1989) (Kennedy, J., concurring in part and dissenting in part). Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g., id., at 630-631 (O'Connor, J., concurring); Lynch v. Donnelly, 465 U.S. 668, 716-717 (1984) (Brennan, J., dissenting). But words such as "God" have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the phrase "one Nation under God." The declaration that our country is "'one Nation under God'" necessarily "entail[s] an affirmation that God exists." Newdow, supra, at 48 (Thomas, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words "under God" have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like "God" are not vulgarities for which the shock value diminishes with each successive utterance. Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O'Connor, J., concurring) (presuming that a reasonable observer is "aware of the history and context of the community and forum in which the religious display appears"). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display "sends the ancillary message to ... nonadherents 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'" SantaFe Independent School Dist. v. Doe, 530 U.S. 290, 309-310 (2000) (quoting Lynch, supra, at 688 (O'Connor, J., concurring)). This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical "reasonable observer," or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility. Finally, the very "flexibility" of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U.S. 578, 640 (1987) (Scalia, J., dissenting) (criticizing the Lemon test's "flexibility" as "the absence of any principled rationale" (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., post, p. --, only compounds the confusion. The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g., Harris v. Zion, Lake Cty., Ill., 927 F.2d 1401, 1425 (CA7 1991) (Easterbrook, J., dissenting) ("Line drawing in this area will be erratic and heavily influenced by the personal views of the judges"); post, at 3 (Breyer, J., concurring in judgment) ("I see no test-related substitute for the exercise of legal judgment"). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges. Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order. THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice Breyer, concurring in the judgment. In School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), Justice Goldberg, joined by Justice Harlan, wrote, in respect to the First Amendment's Religion Clauses, that there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible." Id., at 306 (concurring opinion). One must refer instead to the basic purposes of those Clauses. They seek to "assure the fullest possible scope of religious liberty and tolerance for all." Id., at 305. They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike. Zelman v. Simmons-Harris, 536 U.S. 639, 717-729 (2002) (Breyer, J., dissenting). They seek to maintain that "separation of church and state" that has long been critical to the "peaceful dominion that religion exercises in [this] country," where the "spirit of religion" and the "spirit of freedom" are productively "united," "reign[ing] together" but in separate spheres "on the same soil." A. de Tocqueville, Democracy in America 282-283 (1835) (H. Mansfield & D. Winthrop transls. and eds. 2000). They seek to further the basic principles set forth today by Justice O'Connor in her concurring opinion in McCreary County v. American Civil Liberties Union of Ky., post, at 1. The Court has made clear, as Justices Goldberg and Harlan noted, that the realization of these goals means that government must "neither engage in nor compel religious practices," that it must "effect no favoritism among sects or between religion and nonreligion," and that it must "work deterrence of no religious belief." Schempp, supra, at 305 (concurring opinion); see also Lee v. Weisman, 505 U.S. 577, 587 (1992); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947). The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 593-594 (1989); Zelman, supra, at 723-725 (Breyer, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983). Such absolutism is not only inconsistent with our national traditions, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Lynch v. Donnelly, 465 U.S. 668, 672-678 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid. Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp, 374 U.S., at 306 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure "neutrality" alone are insufficient, both because it is sometimes difficult to determine when a legal rule is "neutral," and because "untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." Ibid. Neither can this Court's other tests readily explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, see Marsh, supra; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. See, e.g., Lemon, supra, at 612-613 (setting forth what has come to be known as the "Lemon test"); Lynch, supra, at 687 (O'Connor, J., concurring) (setting forth the "endorsement test"); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 800, n. 5 (1995) (Stevens, J., dissenting) (agreeing that an "endorsement test" should apply but criticizing its "reasonable observer" standard); SantaFe Independent School Dist. v. Doe, 530 U.S. 290, 319 (2000) (Rehnquist, C.J., dissenting) (noting Lemon's "checkered career in the decisional law of this Court"); County of Allegheny, supra, at 655-656 (Kennedy, J., joined by Rehnquist, C. J., and White and Scalia, JJ., concurring in judgment in part and dissenting in part) (criticizing the Lemon test). If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. See Schempp, supra, at 305 (Goldberg, J., concurring); cf. Zelman, supra, at 726-728 (Breyer, J., dissenting) (need for similar exercise of judgment where quantitative considerations matter). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court's prior tests provide useful guideposts--and might well lead to the same result the Court reaches today, see, e.g., Lemon, supra, at 612-613; Capitol Square, supra, at 773-783 (O'Connor, J., concurring in part and concurring in judgment)--no exact formula can dictate a resolution to such fact-intensive cases. The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the Diety. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display. In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)--a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. See generally App. to Brief for United States as Amicus Curiae 1a-7a. Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display's placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets' message to predominate. And the monument's 40-year history on the Texas state grounds indicates that that has been its effect. The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality as part of that organization's efforts to combat juvenile delinquency. See 1961 Tex. Gen. Laws 1995. The Eagles' consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group's ethics-based motives. See Brief for Respondents 5-6, and n.9. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances the State itself from the religious aspect of the Commandments' message. The physical setting of the monument, moreover, suggests little or nothing of the sacred. See Appendix A, infra. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the "ideals" of those who settled in Texas and of those who have lived there since that time. Tex. H. Con. Res. 38, 77th Leg. (2001); see Appendix B, infra. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display's inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State's citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display's moral message--an illustrative message reflecting the historical "ideals" of Texans--to predominate. If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to "work deterrence" of any "religious belief." Schempp, 374 U.S., at 305 (Goldberg, J., concurring). Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage. This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. See, e.g., Weisman, 449 U.S. 39 (1980) (per curiam). This case also differs from McCreary County, where the short (and stormy) history of the courthouse Commandments' displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. See, post, at 21-25 (opinion of the Court). That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today's world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not. For these reasons, I believe that the Texas display--serving a mixed but primarily nonreligious purpose, not primarily "advanc[ing]" or "inhibit[ing] religion," and not creating an "excessive government entanglement with religion,"--might satisfy this Court's more formal Establishment Clause tests. Lemon, 403 U.S., at 612-613 (internal quotation marks omitted); see also Capitol Square, 515 U.S., at 773-783 (O'Connor, J., concurring in part and concurring in judgment). But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment's Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one. At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U.S., at 717-729 (Breyer, J., dissenting). Justices Goldberg and Harlan concluded in Schempp that "[t]he First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercise or in the favoring of religion as to have meaningful and practical impact." 374 U.S., at 308 (concurring opinion). That kind of practice is what we have here. I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must "distinguish between real threat and mere shadow." Ibid. Here, we have only the shadow. In light of these considerations, I cannot agree with today's plurality's analysis. See, e.g., ante, at 3-4, n.3, 6-9. Nor can I agree with Justice Scalia's dissent in McCreary County, post, at 1. I do agree with Justice O'Connor's statement of principles in McCreary County, post, at 1, though I disagree with her evaluation of the evidence as it bears on the application of those principles to this case. I concur in the judgment of the Court. [Graphic omitted: see printed opinion.] THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice Stevens, with whom Justice Ginsburg joins, dissenting. The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message: "I AM the LORD thy God. "Thou shalt have no other gods before me. "Thou shalt not make to thyself any graven images. "Thou shalt not take the Name of the Lord thy God in vain. "Remember the Sabbath day, to keep it holy. "Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee. "Thou shalt not kill. "Thou shalt not commit adultery. "Thou shalt not steal. "Thou shalt not bear false witness against thy neighbor. "Thou shalt not covet thy neighbor's house. "Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's." See Appendix, infra.1 Viewed on its face, Texas' display has no purported connection to God's role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas' chosen display is quite plain: This State endorses the divine code of the "Judeo-Christian" God. For those of us who learned to recite the King James version of the text long before we understood the meaning of some of its words, God's Commandments may seem like wise counsel. The question before this Court, however, is whether it is counsel that the State of Texas may proclaim without violating the Establishment Clause of the Constitution. If any fragment of Jefferson's metaphorical "wall of separation between church and State"2 is to be preserved--if there remains any meaning to the "wholesome 'neutrality' of which this Court's [Establishment Clause] cases speak," School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222 (1963)--a negative answer to that question is mandatory. I In my judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 650 (1989) (Stevens, J., concurring in part and dissenting in part); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 797 (1995) (Stevens, J., dissenting). The adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular faiths. Unfortunately, the practice also runs the risk of "offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful." Allegheny County, 492 U.S., at 651 (Stevens, J., concurring in part and dissenting in part).3 Government's obligation to avoid divisiveness and exclusion in the religious sphere is compelled by the Establishment and Free Exercise Clauses, which together erect a wall of separation between church and state.4 This metaphorical wall protects principles long recognized and often recited in this Court's cases. The first and most fundamental of these principles, one that a majority of this Court today affirms, is that the Establishment Clause demands religious neutrality--government may not exercise a preference for one religious faith over another. See, e.g., McCreary County v. American Civil Liberties Union, Ky., post, at 27-29.5 This essential command, however, is not merely a prohibition against the government's differentiation among religious sects. We have repeatedly reaffirmed that neither a State nor the Federal Government "can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (footnote omitted).6 This principle is based on the straightforward notion that governmental promotion of orthodoxy is not saved by the aggregation of several orthodoxies under the State's banner. See Abington, 374 U.S., at 222. Acknowledgments of this broad understanding of the neutrality principle are legion in our cases.7 Strong arguments to the contrary have been raised from time to time, perhaps the strongest in then-Justice Rehnquist's scholarly dissent in Wallace v. Jaffree, 472 U. S. 38, 91-114 (1985).8 Powerful as his argument was, we squarely rejected it and thereby reaffirmed the principle that the Establishment Clause requires the same respect for the atheist as it does for the adherent of a Christian faith. As we wrote, "the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embodies the right to select any religious faith or none at all." Id., at 52-53. In restating this principle, I do not discount the importance of avoiding an overly strict interpretation of the metaphor so often used to define the reach of the Establishment Clause. The plurality is correct to note that "religion and religious traditions" have played a "strong role ... throughout our nation's history." Ante, at 3. This Court has often recognized "an unbroken history of official acknowledgment ... of the role of religion in American life." Lynch v. Donnelly, 465 U.S. 668, 674 (1984); accord, Edwards v. Aguillard, 482 U.S. 578, 606-608 (1987) (Powell, J., concurring). Given this history, it is unsurprising that a religious symbol may at times become an important feature of a familiar landscape or a reminder of an important event in the history of a community. The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance. This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various ways in which religion has played a role in American life, see ante, at 3-8 (plurality opinion), and by the recitation of the many extant governmental "acknowledgments" of the role the Ten Commandments played in our Nation's heritage.9 Ante, at 8-9, and n.8. Surely, the mere compilation of religious symbols, none of which includes the full text of the Commandments and all of which are exhibited in different settings, has only marginal relevance to the question presented in this case. The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State's refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation's resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality's wholehearted validation of an official state endorsement of the message that there is one, and only one, God. II When the Ten Commandments monument was donated to the State of Texas in 1961, it was not for the purpose of commemorating a noteworthy event in Texas history, signifying the Commandments' influence on the development of secular law, or even denoting the religious beliefs of Texans at that time. To the contrary, the donation was only one of over a hundred largely identical monoliths, and of over a thousand paper replicas, distributed to state and local governments throughout the Nation over the course of several decades. This ambitious project was the work of the Fraternal Order of Eagles, a well-respected benevolent organization whose good works have earned the praise of several Presidents.10 As the story goes, the program was initiated by the late Judge E. J. Ruegemer, a Minnesota juvenile court judge and then-Chairman of the Eagles National Commission on Youth Guidance. Inspired by a juvenile offender who had never heard of the Ten Commandments, the judge approached the Minnesota Eagles with the idea of distributing paper copies of the Commandments to be posted in courthouses nationwide. The State's Aerie undertook this project and its popularity spread. When Cecil B. DeMille, who at that time was filming the movie The Ten Commandments, heard of the judge's endeavor, he teamed up with the Eagles to produce the type of granite monolith now displayed in front of the Texas Capitol and at courthouse squares, city halls, and public parks throughout the Nation. Granite was reportedly chosen over DeMille's original suggestion of bronze plaques to better replicate the original Ten Commandments.11 The donors were motivated by a desire to "inspire the youth" and curb juvenile delinquency by providing children with a "code of conduct or standards by which to govern their actions."12 It is the Eagles' belief that disseminating the message conveyed by the Ten Commandments will help to persuade young men and women to observe civilized standards of behavior, and will lead to more productive lives. Significantly, although the Eagles' organization is nonsectarian, eligibility for membership is premised on a belief in the existence of a "Supreme Being."13 As described by the Eagles themselves: "'in searching for a youth guidance program, [we] recognized that there can be no better, no more defined program of Youth Guidance, and adult guidance as well, than the laws handed down by God Himself to Moses more than 3000 years ago, which laws have stood unchanged through the years. They are a fundamental part of our lives, the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men. All the concepts we live by--freedom, democracy, justice, honor--are rooted in the Ten Commandments. ..... "'The erection of these monoliths is to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.'" Anderson v. Salt Lake City Corp., 348 F. Supp. 1170, 1172 (Utah 1972), rev'd, 475 F.2d 29 (CA10 1973). The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the "law of God"--directing fidelity to God and proscribing murder, theft, and adultery--the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular by-products that are intended consequences of religious instruction--indeed, of the establishment of most religions--are not the type of "secular" purposes that justify government promulgation of sacred religious messages. Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. See Bowen v. Kendrick, 487 U. S. 589, 639-640 (1988) (Blackmun, J., dissenting) ("It should be undeniable by now that religious dogma may not be employed by government even to accomplish laudable secular purposes"). The State may admonish its citizens not to lie, cheat or steal, to honor their parents and to respect their neighbors' property; and it may do so by printed words, in television commercials, or on granite monuments in front of its public buildings. Moreover, the State may provide its schoolchildren and adult citizens with educational materials that explain the important role that our forebears' faith in God played in their decisions to select America as a refuge from religious persecution, to declare their independence from the British Crown, and to conceive a new Nation. See Edwards, 482 U.S., at 606-608 (Powell, J., concurring). The message at issue in this case, however, is fundamentally different from either a bland admonition to observe generally accepted rules of behavior or a general history lesson. The reason this message stands apart is that the Decalogue is a venerable religious text.14 As we held 25 years ago, it is beyond dispute that "[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths." Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam) (footnote omitted). For many followers, the Commandments represent the literal word of God as spoken to Moses and repeated to his followers after descending from Mount Sinai. The message conveyed by the Ten Commandments thus cannot be analogized to an appendage to a common article of commerce ("In God we Trust") or an incidental part of a familiar recital ("God save the United States and this honorable Court"). Thankfully, the plurality does not attempt to minimize the religious significance of the Ten Commandments. Ante, at 10 ("Of course, the Ten Commandments are religious--they were so viewed at their inception and so remain"); ante, at 1 (Thomas, J., concurring); see also McCreary County v. American Civil Liberties Union of Ky., post, at 19 (Scalia, J., dissenting). Attempts to secularize what is unquestionably a sacred text defy credibility and disserve people of faith. The profoundly sacred message embodied by the text inscribed on the Texas monument is emphasized by the especially large letters that identify its author: "I AM the LORD thy God." See Appendix, infra. It commands present worship of Him and no other deity. It directs us to be guided by His teaching in the current and future conduct of all of our affairs. It instructs us to follow a code of divine law, some of which has informed and been integrated into our secular legal code ("Thou shalt not kill"), but much of which has not ("Thou shalt not make to thyself any graven images.... Thou shalt not covet"). Moreover, despite the Eagles' best efforts to choose a benign nondenominational text,15 the Ten Commandments display projects not just a religious, but an inherently sectarian message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.16 See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, 474-476 (Fall 1998). In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text's selection.17 The Establishment Clause, if nothing else, forbids government from "specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ." Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting). Given that the chosen text inscribed on the Ten Commandments monument invariably places the State at the center of a serious sectarian dispute, the display is unquestionably unconstitutional under our case law. See Larson v. Valente, 456 U. S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another"). Even if, however, the message of the monument, despite the inscribed text, fairly could be said to represent the belief system of all Judeo-Christians, it would still run afoul of the Establishment Clause by prescribing a compelled code of conduct from one God, namely a Judeo-Christian God, that is rejected by prominent polytheistic sects, such as Hinduism, as well as nontheistic religions, such as Buddhism.18 See, e.g., Allegheny County, 492 U.S., at 615 (opinion of Blackmun, J.) ("The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone"). And, at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion. See, e.g., id., at 590 (The Establishment Clause "guarantee[s] religious liberty and equality to the 'infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism'" (quoting Wallace, 472 U.S., at 52)). Any of those bases, in my judgment, would be sufficient to conclude that the message should not be proclaimed by the State of Texas on a permanent monument at the seat of its government. I do not doubt that some Texans, including those elected to the Texas Legislature, may believe that the statues displayed on the Texas Capitol grounds, including the Ten Commandments monument, reflect the "ideals . . . that compose Texan identity." Tex. H. Con. Res. 38, 77th Leg. 6473 (2001). But Texas, like our entire country, is now a much more diversified community than it was when it became a part of the United States or even when the monument was erected. Today there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all. Some may believe that the account of the creation in the Book of Genesis is less reliable than the views of men like Darwin and Einstein. The monument is no more an expression of the views of every true Texan than was the "Live Free or Die" motto that the State of New Hampshire placed on its license plates in 1969 an accurate expression of the views of every citizen of New Hampshire. See Wooley v. Maynard, 430 U.S. 705 (1977). Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers "feel like [outsiders] in matters of faith, and [strangers] in the political community." Pinette, 515 U.S., at 799 (Stevens, J., dissenting). "[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal." Allegheny County, 492 U.S., at 651 (Stevens, J., concurring in part and dissenting in part).19 Even more than the display of a religious symbol on government property, see Pinette, 515 U.S., at 797 (Stevens, J., dissenting); Allegheny County, 492 U.S., at 650-651 (Stevens, J., concurring in part and dissenting in part), displaying this sectarian text at the state capitol should invoke a powerful presumption of invalidity. As Justice Souter's opinion persuasively demonstrates, the physical setting in which the Texas monument is displayed--far from rebutting that presumption--actually enhances the religious content of its message. See post, at 6-8. The monument's permanent fixture at the seat of Texas government is of immense significance. The fact that a monument: "is installed on public property implies official recognition and reinforcement of its message. That implication is especially strong when the sign stands in front of the seat of government itself. The 'reasonable observer' of any symbol placed unattended in front of any capitol in the world will normally assume that the sovereign--which is not only the owner of that parcel of real estate but also the lawgiver for the surrounding territory--has sponsored and facilitated its message." Pinette, 515 U. S., at 801-802 (Stevens, J., dissenting). Critical examination of the Decalogue's prominent display at the seat of Texas government, rather than generic citation to the role of religion in American life, unmistakably reveals on which side of the "slippery slope," ante, at 8 (Breyer, J., concurring in judgment), this display must fall. God, as the author of its message, the Eagles, as the donor of the monument, and the State of Texas, as its proud owner, speak with one voice for a common purpose--to encourage Texans to abide by the divine code of a "Judeo-Christian" God. If this message is permissible, then the shining principle of neutrality to which we have long adhered is nothing more than mere shadow. III The plurality relies heavily on the fact that our Republic was founded, and has been governed since its nascence, by leaders who spoke then (and speak still) in plainly religious rhetoric. The Chief Justice cites, for instance, George Washington's 1789 Thanksgiving Proclamation in support of the proposition that the Establishment Clause does not proscribe official recognition of God's role in our Nation's heritage, ante, at 7-8.20 Further, the plurality emphatically endorses the seemingly timeless recognition that our "institutions presuppose a Supreme Being," ante, at 4. Many of the submissions made to this Court by the parties and amici, in accord with the plurality's opinion, have relied on the ubiquity of references to God throughout our history. The speeches and rhetoric characteristic of the founding era, however, do not answer the question before us. I have already explained why Texas' display of the full text of the Ten Commandments, given the content of the actual display and the context in which it is situated, sets this case apart from the countless examples of benign government recognitions of religion. But there is another crucial difference. Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.21 The permanent placement of a textual religious display on state property is different in kind; it amalgamates otherwise discordant individual views into a collective statement of government approval. Moreover, the message never ceases to transmit itself to objecting viewers whose only choices are to accept the message or to ignore the offense by averting their gaze. Cf. Allegheny County, 492 U.S., at 664 (Kennedy, J., concurring in judgment in part and dissenting in part); ante, at 4 (Thomas, J., concurring). In this sense, although Thanksgiving Day proclamations and inaugural speeches undoubtedly seem official, in most circumstances they will not constitute the sort of governmental endorsement of religion at which the separation of church and state is aimed.22 The plurality's reliance on early religious statements and proclamations made by the Founders is also problematic because those views were not espoused at the Constitutional Convention in 178723 nor enshrined in the Constitution's text. Thus, the presentation of these religious statements as a unified historical narrative is bound to paint a misleading picture. It does so here. In according deference to the statements of George Washington and John Adams, The Chief Justice and Justice Scalia, see ante, at 7 (plurality opinion); McCreary County, post, at 3-4 (dissenting opinion), fail to account for the acts and publicly espoused views of other influential leaders of that time. Notably absent from their historical snapshot is the fact that Thomas Jefferson refused to issue the Thanksgiving proclamations that Washington had so readily embraced based on the argument that to do so would violate the Establishment Clause.24 The Chief Justice and Justice Scalia disregard the substantial debates that took place regarding the constitutionality of the early proclamations and acts they cite, see, e.g., Letter from James Madison to Edward Livingston (July 10, 1822), in 5 The Founders' Constitution 105-106 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders' Constitution) (arguing that Congress' appointment of Chaplains to be paid from the National Treasury was "not with my approbation" and was a "deviation" from the principle of "immunity of Religion from civil jurisdiction"),25 and paper over the fact that Madison more than once repudiated the views attributed to him by many, stating unequivocally that with respect to government's involvement with religion, the "'tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, & protecting each sect against trespasses on its legal rights by others.'"26 These seemingly nonconforming sentiments should come as no surprise. Not insignificant numbers of colonists came to this country with memories of religious persecution by monarchs on the other side of the Atlantic. See A. Stokes & L. Pfeffer, Church and State in the United States 3-23 (rev. ed. 1964). Others experienced religious intolerance at the hands of colonial Puritans, who regrettably failed to practice the tolerance that some of their contemporaries preached. Engel v. Vitale, 370 U.S. 421, 427-429 (1962). The Chief Justice and Justice Scalia ignore the separationist impulses--in accord with the principle of "neutrality"--that these individuals brought to the debates surrounding the adoption of the Establishment Clause.27 Ardent separationists aside, there is another critical nuance lost in the plurality's portrayal of history. Simply put, many of the Founders who are often cited as authoritative expositors of the Constitution's original meaning understood the Establishment Clause to stand for a narrower proposition than the plurality, for whatever reason, is willing to accept. Namely, many of the Framers understood the word "religion" in the Establishment Clause to encompass only the various sects of Christianity. The evidence is compelling. Prior to the Philadelphia Convention, the States had begun to protect "religious freedom" in their various constitutions. Many of those provisions, however, restricted "equal protection" and "free exercise" to Christians, and invocations of the divine were commonly understood to refer to Christ.28 That historical background likely informed the Framers' understanding of the First Amendment. Accordingly, one influential thinker wrote of the First Amendment that "'[t]he meaning of the term "establishment" in this amendment unquestionably is, the preference and establishment given by law to one sect of Christians over every other.'" Jasper Adams, The Relation of Christianity to Civil Government in the United States (Feb. 13, 1833) (quoted in Dreisbach 16). That definition tracked the understanding of the text Justice Story adopted in his famous Commentaries, in which he wrote that the "real object" of the Clause was: "not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age." 2 J. Story, Commentaries on the Constitution of the United States §991, p. 701 (R. Rotunda & J. Nowak eds. 1987) (hereinafter Story); see also Wallace, 472 U.S., at 52-55, and n. 36.29 Along these lines, for nearly a century after the Founding, many accepted the idea that America was not just a religious nation, but "a Christian nation." Church of Holy Trinity v. United States, 143 U.S. 457, 471 (1892).30 The original understanding of the type of "religion" that qualified for constitutional protection under the Establishment Clause likely did not include those followers of Judaism and Islam who are among the preferred "monotheistic" religions Justice Scalia has embraced in his McCreary County opinion. See post, at 10-11 (dissenting opinion).31 The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice Scalia is unable to point to any persuasive historical evidence or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions. Perhaps this is because the history of the Establishment Clause's original meaning just as strongly supports a preference for Christianity as it does a preference for monotheism. Generic references to "God" hardly constitute evidence that those who spoke the word meant to be inclusive of all monotheistic believers; nor do such references demonstrate that those who heard the word spoken understood it broadly to include all monotheistic faiths. See supra, at 21. Justice Scalia's inclusion of Judaism and Islam is a laudable act of religious tolerance, but it is one that is unmoored from the Constitution's history and text, and moreover one that is patently arbitrary in its inclusion of some, but exclusion of other (e.g., Buddhism), widely practiced non-Christian religions. See supra, at 12, 13-14, and n. 16 (noting that followers of Buddhism nearly equal the number of Americans who follow Islam). Given the original understanding of the men who championed our "Christian nation"--men who had no cause to view anti-Semitism or contempt for atheists as problems worthy of civic concern--one must ask whether Justice Scalia "has not had the courage (or the foolhardiness) to apply [his originalism] principle consistently." McCreary County, post, at 7. Indeed, to constrict narrowly the reach of the Establishment Clause to the views of the Founders would lead to more than this unpalatable result; it would also leave us with an unincorporated constitutional provision--in other words, one that limits only the federal establishment of "a national religion." See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring in judgment); cf. A. Amar, The Bill of Rights 36-39 (1998). Under this view, not only could a State constitutionally adorn all of its public spaces with crucifixes or passages from the New Testament, it would also have full authority to prescribe the teachings of Martin Luther or Joseph Smith as the official state religion. Only the Federal Government would be prohibited from taking sides, (and only then as between Christian sects). A reading of the First Amendment dependent on either of the purported original meanings expressed above would eviscerate the heart of the Establishment Clause. It would replace Jefferson's "wall of separation" with a perverse wall of exclusion--Christians inside, non-Christians out. It would permit States to construct walls of their own choosing--Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance. Cf. Abington, 536 U.S. 639, 720, 723 (2002) (Breyer, J., dissenting). Unless one is willing to renounce over 65 years of Establishment Clause jurisprudence and cross back over the incorporation bridge, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), appeals to the religiosity of the Framers ring hollow.32 But even if there were a coherent way to embrace incorporation with one hand while steadfastly abiding by the Founders' purported religious views on the other, the problem of the selective use of history remains. As the widely divergent views espoused by the leaders of our founding era plainly reveal, the historical record of the preincorporation Establishment Clause is too indeterminate to serve as an interpretive North Star.33 It is our duty, therefore, to interpret the First Amendment's command that "Congress shall make no law respecting an establishment of religion" not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause's text and history the broad principles that remain valid today. As we have said in the context of statutory interpretation, legislation "often [goes] beyond the principal evil [at which the statute was aimed] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998). In similar fashion, we have construed the Equal Protection Clause of the Fourteenth Amendment to prohibit segregated schools, see Brown v. Board of Education, 349 U. S. 294 (1955), even though those who drafted that Amendment evidently thought that separate was not unequal.34 We have held that the same Amendment prohibits discrimination against individuals on account of their gender, Frontiero v. Richardson, 411 U.S. 677 (1973), despite the fact that the contemporaries of the Amendment "doubt[ed] very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision," Slaughter-House Cases, 16 Wall. 36, 81 (1873). And we have construed "evolving standards of decency" to make impermissible practices that were not considered "cruel and unusual" at the founding. See Roper v. Simmons, 543 U.S. ___, ___ (2005) (slip op., at 1) (Stevens, J., concurring). To reason from the broad principles contained in the Constitution does not, as Justice Scalia suggests, require us to abandon our heritage in favor of unprincipled expressions of personal preference. The task of applying the broad principles that the Framers wrote into the text of the First Amendment is, in any event, no more a matter of personal preference than is one's selection between two (or more) sides in a heated historical debate. We serve our constitutional mandate by expounding the meaning of constitutional provisions with one eye towards our Nation's history and the other fixed on its democratic aspirations. See McCulloch v. Maryland, 4 Wheat. 316, 407, 415 (1819) ("[W]e must never forget, that it is a constitution we are expounding" that is intended to "endure for ages to come, and, consequently, to be adapted to the various crises of human affairs"). Constitutions, after all, "are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas." Weems v. United States, 217 U. S. 349, 373 (1910). The principle that guides my analysis is neutrality.35 The basis for that principle is firmly rooted in our Nation's history and our Constitution's text. I recognize that the requirement that government must remain neutral between religion and irreligion would have seemed foreign to some of the Framers; so too would a requirement of neutrality between Jews and Christians. But cf. Letter from George Washington to the Hebrew Congregation in Newport, R.I. (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed. 1996). Fortunately, we are not bound by the Framers' expectations--we are bound by the legal principles they enshrined in our Constitution. Story's vision that States should not discriminate between Christian sects has as its foundation the principle that government must remain neutral between valid systems of belief. As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. The evil of discriminating today against atheists, "polytheists[,] and believers in unconcerned deities," McCreary County, post, at 10 (Scalia, J., dissenting), is in my view a direct descendent of the evil of discriminating among Christian sects. The Establishment Clause thus forbids it and, in turn, forbids Texas from displaying the Ten Commandments monument the plurality so casually affirms. IV The Eagles may donate as many monuments as they choose to be displayed in front of Protestant churches, benevolent organizations' meeting places, or on the front lawns of private citizens. The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall. The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity's command to "have no other gods before me," it is difficult to conceive of any textual display that would run afoul of the Establishment Clause. The disconnect between this Court's approval of Texas's monument and the constitutional prohibition against preferring religion to irreligion cannot be reduced to the exercise of plotting two adjacent locations on a slippery slope. Cf. ante, at 8 (Breyer, J., concurring in judgment). Rather, it is the difference between the shelter of a fortress and exposure to "the winds that would blow" if the wall were allowed to crumble. See TVA v. Hill, 437 U.S. 153, 195 (1978) (internal quotation marks omitted). That wall, however imperfect, remains worth preserving. I respectfully dissent. [Graphic omitted: see printed opinion.] THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice O'Connor, dissenting. For essentially the reasons given by Justice Souter, post, p.___ (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., post, at ___, I respectfully dissent. THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,in his official capacity as GOVERNOR OF TEXASand CHAIRMAN, STATE PRESERVATIONBOARD, etal. on writ of certiorari to the united states court of appeals for the fifth circuit [June 27, 2005] Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting. Although the First Amendment's Religion Clauses have not been read to mandate absolute governmental neutrality toward religion, cf. Sherbert v. Verner, 374 U.S. 398 (1963), the Establishment Clause requires neutrality as a general rule, e.g., Everson v. Board of Ed. of Ewing, 330 U.S. 1, 18 (1947), and thus expresses Madison's condemnation of "employ[ing] Religion as an engine of Civil policy," Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 187 (G. Hunt ed. 1901). A governmental display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others. Until today, only one of our cases addressed the constitutionality of posting the Ten Commandments, Stone v. Graham, 449 U.S. 39, 41-42 (1980) (per curiam). A Kentucky statute required posting the Commandments on the walls of public school classrooms, and the Court described the State's purpose (relevant under the tripartite test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971)) as being at odds with the obligation of religious neutrality. "The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day." 449 U.S, at 41-42 (footnote and citations omitted). What these observations underscore are the simple realities that the Ten Commandments constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same.1 Thus, a pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments' first sectarian reference, "I am the Lord thy God." That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word "Lord" appears in all capital letters (as does the word "am"), so that the most eye-catching segment of the quotation is the declaration "I AM the LORD thy God." App. to Pet. for Cert. 21. What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land "which the Lord they God giveth thee." See ibid. These "[w]ords ... make [the] ... religious meaning unmistakably clear." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 598 (1989). To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ. Nothing on the monument, in fact, detracts from its religious nature,2 see ibid. ("Here, unlike in Lynch [v. Donnelly, 465 U. S. 668 (1984)], nothing in the context of the display detracts from the crčche's religious message"), and the plurality does not suggest otherwise. It would therefore be difficult to miss the point that the government of Texas3 is telling everyone who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians. And it is likewise unsurprising that the District Court expressly rejected Texas's argument that the State's purpose in placing the monument on the capitol grounds was related to the Commandments' role as "part of the foundation of modern secular law in Texas and elsewhere." App. to Pet. for Cert. 32. The monument's presentation of the Commandments with religious text emphasized and enhanced stands in contrast to any number of perfectly constitutional depictions of them, the frieze of our own Courtroom providing a good example, where the figure of Moses stands among history's great lawgivers. While Moses holds the tablets of the Commandments showing some Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious purpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral and intellectual abstractions like Equity and Authority. See County of Allegheny, supra, at 652 (Stevens, J., concurring in part and dissenting in part). Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of other lawgivers; and the viewers may just as naturally see the tablets of the Commandments (showing the later ones, forbidding things like killing and theft, but without the divine preface) as background from which the concept of law emerged, ultimately having a secular influence in the history of the Nation. Government may, of course, constitutionally call attention to this influence, and may post displays or erect monuments recounting this aspect of our history no less than any other, so long as there is a context and that context is historical. Hence, a display of the Commandments accompanied by an exposition of how they have influenced modern law would most likely be constitutionally unobjectionable.4 And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools. Stone, 449 U.S., at 42.5 Texas seeks to take advantage of the recognition that visual symbol and written text can manifest a secular purpose in secular company, when it argues that its monument (like Moses in the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres surrounding the state capitol. Texas, indeed, says that the Capitol grounds are like a museum for a collection of exhibits, the kind of setting that several Members of the Court have said can render the exhibition of religious artifacts permissible, even though in other circumstances their display would be seen as meant to convey a religious message forbidden to the State. County of Allegheny, 465 U. S. 668, 692 (1984) (O'Connor, J., concurring). So, for example, the Government of the United States does not violate the Establishment Clause by hanging Giotto's Madonna on the wall of the National Gallery. But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass. One monument expresses admiration for pioneer women. One pays respect to the fighters of World War II. And one quotes the God of Abraham whose command is the sanction for moral law. The themes are individual grit, patriotic courage, and God as the source of Jewish and Christian morality; there is no common denominator. In like circumstances, we rejected an argument similar to the State's, noting in County of Allegheny that "[t]he presence of Santas or other Christmas decorations elsewhere in the . . . [c]ourthouse, and of the nearby gallery forum, fail to negate the [crčche's] endorsement effect. . . . The record demonstrates . . . that the crčche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building." 492 U.S., at 598-599, n. 48.6 If the State's museum argument does nothing to blunt the religious message and manifestly religious purpose behind it, neither does the plurality's reliance on generalities culled from cases factually different from this one. E.g., ante, at 8 ("We have acknowledged, for example, that 'religion has been closely identified with our history and government,' School Dist. of Abington Township v. Schempp, 370 U.S. 421, 434 (1962)"). In fact, it is not until the end of its opinion that the plurality turns to the relevant precedent of Stone, a case actually dealing with a display of the Decalogue. When the plurality finally does confront Stone, it tries to avoid the case's obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for limiting Stone's reach this way in the opinion's citations of two school-prayer cases, School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), and Engel v. Vitale, 370 U.S. 421 (1962). But Stone relied on those cases for widely applicable notions, not for any concept specific to schools. The opinion quoted Schempp's statements that "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment," Schempp, supra, at 225, quoted in Stone, 482 U.S. 578, 584 (1987). Stone did not, for example, speak of children's impressionability or their captivity as an audience in a school class. In fact, Stone's reasoning reached the classroom only in noting the lack of support for the claim that the State had brought the Commandments into schools in order to "integrat[e] [them] into the school curriculum." 449 U.S., at 42. Accordingly, our numerous prior discussions of Stone have never treated its holding as restricted to the classroom.7 Nor can the plurality deflect Stone by calling the Texas monument "a far more passive use of [the Decalogue] than was the case in Stone, where the text confronted elementary school students every day." Ante, at 12. Placing a monument on the ground is not more "passive" than hanging a sheet of paper on a wall when both contain the same text to be read by anyone who looks at it. The problem in Stone was simply that the State was putting the Commandments there to be seen, just as the monument's inscription is there for those who walk by it. To be sure, Kentucky's compulsory-education law meant that the schoolchildren were forced to see the display every day, whereas many see the monument by choice, and those who customarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil down to judgment, see ante, at 3-4 (Breyer, J., concurring in judgment)), this distinction should make no difference. The monument in this case sits on the grounds of the Texas State Capitol. There is something significant in the common term "statehouse" to refer to a state capitol building: it is the civic home of every one of the State's citizens. If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion. See County of Allegheny, 492 U.S., at 626 (O'Connor, J., concurring in part and concurring in judgment) ("I agree that the crčche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community .... The display of religious symbols in public areas of core government buildings runs a special risk of making religion relevant, in reality or public perception, to status in the political community" (alteration and internal quotation marks omitted)). Finally, though this too is a point on which judgment will vary, I do not see a persuasive argument for constitutionality in the plurality's observation that Van Orden's lawsuit comes "[f]orty years after the monument's erection . . . ," ante, at 2, an observation that echoes the State's contention that one fact cutting in its favor is that "the monument stood ... in Austin . . . for some forty years without generating any controversy or litigation," Brief for Respondents 25. It is not that I think the passage of time is necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U.S. 420 (1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes at some point too diminished for notice. But I do not understand any of these to be the State's argument, which rather seems to be that 40 years without a challenge shows that as a factual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff's pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause. I would reverse the judgment of the Court of Appeals. FOOTNOTESFootnote 1The monuments are: Heroes of the Alamo, Hood's Brigade, Confederate Soldiers, Volunteer Fireman, Terry's Texas Rangers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Commandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts' Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers. Footnote 2See also Engel v. Vitale, 370 U.S. 421, 434 (1962) ("The history of man is inseparable from the history of religion"); Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being"). Footnote 3Despite Justice Stevens' recitation of occasional language to the contrary, post, at 4-5, and n. 7 (dissenting opinion), we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion. See, e.g., Cutter v. Wilkinson, 544 U.S. __ (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987); Lynch v. Donnelly, 465 U.S. 668 (1984); Marsh v. Chambers, 463 U.S. 783 (1983); Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970). Even the dissenters do not claim that the First Amendment's Religion Clauses forbid all governmental acknowledgments, preferences, or accommodations of religion. See post, at 6 (opinion of Stevens, J.) (recognizing that the Establishment Clause permits some "recognition" or "acknowledgment" of religion); post, at 5, and n.4 (opinion of Souter, J.) (discussing a number of permissible displays with religious content). Footnote 4Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding school voucher program); Good News Club v. Milford Central School, 533 U.S. 98 (2001) (holding that allowing religious school groups to use school facilities does not violate the Establishment Clause); Agostini v. Felton, 521 U.S. 203 (1997) (approving a program that provided public employees to teach remedial classes at religious and other private schools), overruling Aguilar v. Felton, 473 U.S. 402 (1985) (barring public school teachers from going to parochial schools to provide remedial education to disadvantaged children), and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985) (striking down a program that provided classes to religious school students at public expense in classrooms leased from religious schools); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (holding that the Establishment Clause does not bar disbursement of funds from student activity fees to religious organizations); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (allowing a public school district to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled); Lynch v. Donnelly, supra (upholding a Christmas display including a crčche); Marsh v. Chambers, supra (upholding legislative prayer); Mueller v. Allen, 463 U.S. 388 (1983) (upholding tax deduction for certain expenses incurred in sending one's child to a religious school). Footnote 5Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (holding unconstitutional student-initiated and student-led prayer at school football games); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994) (invalidating a state law that created a new school district for a single religious community); Lee v. Weisman, 505 U.S. 577 (1992) (prohibiting officially sponsored graduation prayers); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (holding the display of a crčche in a courthouse unconstitutional but allowing the display of a menorah outside a county building); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (plurality opinion) (invalidating a sales tax exemption for all religious periodicals); Edwards v. Aguillard, 482 U.S. 578 (1987) (invalidating a law mandating the teaching of creationism if evolution was taught); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (invalidating state law that gave employees an absolute right not to work on their Sabbath); Wallace v. Jaffree, 472 U.S. 38 (1985) (invalidating law mandating a daily minute of silence for meditation or voluntary prayer). Footnote 6Lemon sets out a three-prong test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" 403 U.S., at 612-613 (citation omitted). Footnote 7See also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 26 (2004) (Rehnquist, C.J., concurring in judgment) ("Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound"); id., at 35-36 (O'Connor, J., concurring in judgment) ("It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths"); Lynch v. Donnelly, 465 U.S., at 675 ("Our history is replete with official references to the value and invocation of Divine guidance"). Footnote 8Indeed, we rejected the claim that an Establishment Clause violation was presented because the prayers had once been offered in the Judeo-Christian tradition: In Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed. 463 U.S., at 793-794, and n. 14. Footnote 9Other examples of monuments and buildings reflecting the prominent role of religion abound. For example, the Washington, Jefferson, and Lincoln Memorials all contain explicit invocations of God's importance. The apex of the Washington Monument is inscribed "Laus Deo," which is translated to mean "Praise be to God," and multiple memorial stones in the monument contain Biblical citations. The Jefferson Memorial is engraved with three quotes from Jefferson that make God a central theme. Inscribed on the wall of the Lincoln Memorial are two of Lincoln's most famous speeches, the Gettysburg Address and his Second Inaugural Address. Both inscriptions include those speeches' extensive acknowledgments of God. The first federal monument, which was accepted by the United States in honor of sailors who died in Tripoli, noted the dates of the fallen sailors as "the year of our Lord, 1804, and in the 28 year of the independence of the United States." Footnote 10See also Edwards v. Aguillard, 449 U.S. 39, 45 (1980) (Rehnquist, J., dissenting). Footnote 11Nor does anything suggest that Stone would extend to displays of the Ten Commandments that lack a "plainly religious," "pre-eminent purpose," id., at 41. See Edwards v. Aguillard, supra, at 593-594 ("[Stone] did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization"). Indeed, we need not decide in this case the extent to which a primarily religious purpose would affect our analysis because it is clear from the record that there is no evidence of such a purpose in this case. FOOTNOTESFootnote **See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-594 (1989) (employing endorsement test); Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (setting forth three-pronged test); Marsh v. Chambers, 463 U.S. 783, 790-792 (1983) (upholding legislative prayer due to its "unique history"); see also Lynch v. Donnelly, 465 U.S. 668, 679-681 (1984) ("[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area"). FOOTNOTESFootnote 1At the bottom of the message, the observer learns that the display was "[p]resented to the people and youth of Texas by the Fraternal Order of Eagles of Texas" in 1961. See Appendix, infra. Footnote 2Reynolds v. United States, 98 U.S. 145, 164 (1879); see also Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16 (1947). Footnote 3As Senator Danforth recently reminded us, "efforts to haul references of God into the public square, into schools and courthouses, are far more apt to divide Americans than to advance faith." Danforth, Onward, Moderate Christian Soldiers, N.Y. Times, June 17, 2005, p.A27. Footnote 4The accuracy and utility of this metaphor have been called into question. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting); see generally P. Hamburger, Separation of Church and State (2002). Whatever one may think of the merits of the historical debate surrounding Jefferson and the "wall" metaphor, this Court at a minimum has never questioned the concept of the "separation of church and state" in our First Amendment jurisprudence. The Chief Justice's opinion affirms that principle. Ante, at 4 (demanding a "separation between church and state"). Indeed, even the Court that famously opined that "[w]e are a religious people whose institutions presuppose a Supreme Being," Zorach v. Clauson, 343 U.S. 306, 313 (1952), acknowledged that "[t]here cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated," id., at 312. The question we face is how to give meaning to that concept of separation. Footnote 5There is now widespread consensus on this principle. See Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15 (1947) ("Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another"); School District of Abington Township v. Schempp, 374 U.S. 203, 226 (1963) ("In the relationship between man and religion, the State is firmly committed to a position of neutrality"); Larson v. Valente, 456 U.S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another"); see also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 748 (1994) (Scalia, J., dissenting) ("I have always believed ... that the Establishment Clause prohibits the favoring of one religion over others"); but see Church of Holy Trinity v. United States, 143 U.S. 457, 470-471 (1892). Footnote 6In support of this proposition, the Torcaso Court quoted James Iredell, who in the course of debating the adoption of the Federal Constitution in North Carolina, stated: "'it is objected that the people of America may perhaps choose representatives who have no religion at all, and that Pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?'" 367 U.S., at 495, n.10 (quoting 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 197 (1836 ed.)). Footnote 7See Everson, 330 U.S., at 18 (the Establishment Clause "requires the state to be ... neutral in its relations with groups of religious believers and non-believers"); Abington, 374 U.S., at 216 (rejecting the proposition that the Establishment Clause "forbids only governmental preference of one religion over another"); Wallace, 472 U.S., at 52-55 (the interest in "forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among 'religions'--to encompass intolerance of the disbeliever and the uncertain"); cf. Zorach, 343 U.S., at 325 (Jackson, J., dissenting) ("The day that this country ceases to be free for irreligion it will cease to be free for religion--except for the sect that can win political power"). Footnote 8Justice Scalia's dissent in the other Ten Commandments case we decide today, see McCreary County v. American Civil Liberties Union of Ky., post, at 1-11, raises similar objections. I address these objections directly in Part III. Footnote 9Though this Court has subscribed to the view that the Ten Commandments influenced the development of Western legal thought, it has not officially endorsed the far more specific claim that the Ten Commandments played a significant role in the development of our Nation's foundational documents (and the subsidiary implication that it has special relevance to Texas). Although it is perhaps an overstatement to characterize this latter proposition as "idiotic," see Tr. of Oral Arg. 34, as one Member of the plurality has done, at the very least the question is a matter of intense scholarly debate. Compare Brief for Legal Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of Ky., O. T. 2004, No. 03-1693, with Brief for American Center for Law and Justice as Amici Curiae. Whatever the historical accuracy of the proposition, the District Court categorically rejected respondent's suggestion that the State's actual purpose in displaying the Decalogue was to signify its influence on secular law and Texas institutions. App. to Pet. for Cert. A-32. Footnote 10See Brief for Fraternal Order of Eagles as Amicus Curiae 2-3. The Order was formed in 1898 by six Seattle theater owners, promptly joined by actors, playwrights, and stagehands, and rapidly expanded to include a nationwide membership numbering over a million. Id., at 2; see also Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wash. 2d 224, 229, 59 P.3d 655, 657 (2002) (en banc); Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Ore. App. 420, 422, 43 P.3d 1130, 1131 (2002). Footnote 11See Books v. Elkhart, 235 F.3d 292, 294-295 (CA7 2000); State v. Freedom from Religion Foundation, Inc., 898 P.2d 1013, 1017 (Colo. 1995) (en banc); see also U.S. Supreme Court will hear Ten Commandments Case in Early 2005, http://www.foe.com/tencommandments/index.html (all Internet materials as visited June 24, 2005, and available in Clerk of Court's case file). Footnote 12Freedom from Religion Foundation, 898 P.2d, at 1017; accord, 1961 Tex. Gen. Laws 1995 ("These plaques and monoliths have been presented by the Eagles to promote youth morality and to help stop the alarming increase in delinquency"); Brief for Fraternal Order of Eagles as Amicus Curiae 4. Footnote 13According to its articles of incorporation, the Eagles' purpose is to: "'Unite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality ...'" Fraternal Order of Eagles, 148 Wash. 2d, at 229, 59 P.3d, at 657. See also Aerie Membership Application-Fraternal Order of Eagles http://www.foe.com/membership/applications/aerie.html ("I, being of sound body and mind, and believing in the existence of a Supreme Being ..."). Footnote 14In County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), I noted that certain displays of religious images may convey "an equivocal message, perhaps of respect for Judaism, for religion in general, or for law." Id., at 652 (opinion concurring in part and dissenting in part). It is rather misleading, however, to quote my comment in that case to imply that I was referring to the text of the Ten Commandments simpliciter. See McCreary County, post, at 13-14. Footnote 15See ante, at 5 (Breyer, J., concurring in judgment). Despite the Eagles' efforts, not all of the monuments they donated in fact conform to a "universally-accepted" text. Compare, e.g., Appendix, infra (including the command that "Thou shalt not make to thyself any graven images"), and Adland v. Russ, 307 F.3d 471, 475 (CA6 2002) (same), with Freedom from Religion Foundation, 898 P.2d, at 1016 (omitting that command altogether). The distinction represents a critical divide between the Protestant and Catholic faiths. During the Reformation, Protestants destroyed images of the Virgin Mary and of Jesus Christ that were venerated in Catholic churches. Even today there is a notable difference between the imagery in different churches, a difference that may in part be attributable to differing understandings of the meaning of what is the Second Commandment in the King James Bible translation and a portion of the First Commandment in the Catholic translation. See Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 Ford. L.Rev. 1477, 1493-1494 (2005). Footnote 16For example, in the Jewish version of the Sixth Commandment God commands: "You shall not murder"; whereas, the King James interpretation of the same command is: "Thou shalt not kill." Compare W. Plaut, The Torah: A Modern Commentary 534 (1981), with Appendix, infra. The difference between the two versions is not merely semantic; rather, it is but one example of a deep theological dispute. See Finkelman, supra, at 1481-1500; P. Maier, Enumerating the Decalogue; Do We Number the Ten Commandments Correctly? 16 Concordia J. 18, 18-26 (1990). Varying interpretations of this Commandment explain the actions of vegetarians who refuse to eat meat, pacifists who refuse to work for munitions makers, prison officials who refuse to administer lethal injections to death row inmates, and pharmacists who refuse to sell morning-after pills to women. See Finkelman, supra, at 1494-1496; Brief for American Jewish Congress etal. as Amici Curiae 22-23. Although the command is ambiguous, its power to motivate likeminded interpreters of its message cannot be denied. Footnote 17Justice Scalia's willingness to dismiss the distinct textual versions adhered to by different faiths in the name of generic "monotheism" based on mere speculation regarding their significance, McCreary County, post, at 19, is not only somewhat ironic, see A. Scalia, A Matter of Interpretation 23-25 (1997), but also serves to reinforce the concern that interjecting government into the religious sphere will offend "adherents who consider the particular advertisement disrespectful." Allegheny County, 492 U.S., at 651 (Stevens, J., concurring in part and dissenting in part). Footnote 18See Brief for Hindu American Foundation etal. as Amici Curiae. Though Justice Scalia disagrees that these sentiments are consistent with the Establishment Clause, he does not deny that our cases wholeheartedly adopt this expression of neutrality. Instead, he suggests that this Court simply discard what he terms the "say-so of earlier Courts," based in part on his own "say-so" that nonmonotheists make up a statistically insignificant portion of this Nation's religious community. McCreary County, post, at 6. Besides marginalizing the belief systems of more than 7 million Americans by deeming them unworthy of the special protections he offers monotheists under the Establishment Clause, Justice Scalia's measure of analysis may be cause for concern even for the self-proclaimed "popular" religions of Islam and Judaism. The number of Buddhists alone is nearly equal to the number of Muslims in this country, and while those of the Islamic and Jewish faiths only account for 2.2% of all believers, Christianity accounts for 95.5%. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004-2005, p.55 (124th ed. 2004) (Table No. 67). Footnote 19The fact that this particular display has stood unchallenged for over forty years does not suggest otherwise. One need look no further than the deluge of cases flooding lower courts to realize the discord these displays have engendered. See, e.g., Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (CA7 2005); ACLU Nebraska Foundation v. Plattsmouth, 358 F.3d 1020 (CA8 2004); Adland v. Russ, 307 F.3d 471 (CA6 2002); Summum v. Ogden, 297 F.3d 995 (CA10 2002); Books v. Elkhart, 235 F.3d 292 (CA7 2000); State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013 (Colo. 1995); Anderson v. Salt Lake City Corp., 475 F.2d 29 (CA10 1973). Footnote 20This is, of course, a rhetorical approach not unique to the plurality's opinion today. Appeals to such religious speeches have frequently been used in support of governmental transmission of religious messages. See, e.g., Wallace, 505 U.S. 577, 633-636 (1992) (Scalia, J., dissenting); SantaFe Independent School Dist. v. Doe, 530 U.S. 290, 318 (2000) (Rehnquist, C.J., dissenting); cf. Lynch v. Donnelly, 465 U.S. 668, 675-676 (1984). Footnote 21It goes without saying that the analysis differs when a listener is coerced into listening to a prayer. See, e.g., SantaFe Independent School Dist., 530 U.S., at 308-312. Footnote 22With respect to the "legislative prayers" cited approvingly by The Chief Justice, ante, at 8, I reiterate my view that "the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause." Marsh v. Chambers, 463 U.S. 783, 823 (1983) (Stevens, J., dissenting). Thus, Justice Scalia and I are in agreement with respect to at least one point--this Court's decision in Marsh "ignor[ed] the neutrality principle" at the heart of the Establishment Clause. McCreary County, post, at 8 (Scalia, J., dissenting). Footnote 23See, e.g., J. Hutson, Religion and the Founding of the American Republic 75 (1998) (noting the dearth of references to God at the Philadelphia Convention and that many contemporaneous observers of the Convention complained that "the Framers had unaccountably turned their backs on the Almighty" because they "'found the Constitution without any acknowledgement of God'"). Footnote 24 See Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 Founders' Constitution 98; 11 Jefferson's Writings 428-430 (1905); see also Lee, 505 U.S., at 623-625 (Souter, J., concurring) (documenting history); Lynch, 465 U.S., at 716, n. 23 (Brennan, J., dissenting) (same). Footnote 25See also James Madison, Detached Memoranda, in 5 Founders' Constitution 103-104. Madison's letter to Livingston further argued that: "There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eve of the Constitution.... Notwithstanding the general progress made within the last two centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards old error, that without some sort of alliance or coalition between [Government] & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded [against].... Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & [Government] will both exist in greater purity, the less they are mixed together." Id., at 105-106. Footnote 26Religion and Politics in the Early Republic 20-21 (D. Dreisbach ed. 1996) (hereinafter Dreisbach) (quoting Letter from James Madison to Jasper Adams (1833)). See also Letter from James Madison to Edward Livingston (July 10, 1822), in 5 Founders' Constitution 106 ("We are teaching the world the great truth that [Governments] do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of [Government]"). Footnote 27The contrary evidence cited by The Chief Justice and Justice Scalia only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating their own rules. The first Congress was--just as the present Congress is--capable of passing unconstitutional legislation. Thus, it is no answer to say that the Founders' separationist impulses were "plainly rejected" simply because the first Congress enacted laws that acknowledged God. See McCreary County, post, at 13 (Scalia, J., dissenting). To adopt such an interpretive approach would misguidedly give authoritative weight to the fact that the Congress that passed the Fourteenth Amendment also enacted laws that tolerated segregation, and the fact that the Congress that passed the First Amendment also enacted laws, such as the Alien and Sedition Act, that indisputably violated our present understanding of the First Amendment. See n. 36, infra; Lee, 505 U.S., at 626 (Souter, J., concurring). Footnote 28See, e.g., Strang, The Meaning of "Religion" in the First Amendment, 40 Duquesne L.Rev. 181, 220-223 (2002). Footnote 29Justice Story wrote elsewhere that "'Christianity is indispensable to the true interests & solid foundations of all free governments. I distinguish ... between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it. I know not, indeed, how any deep sense of moral obligation or accountableness can be expected to prevail in the community without a firm persuasion of the great Christian Truths." Letter to Jasper Adams (May 14, 1833) Dreisbach 19. Footnote 30See 143 U.S., at 471 ("'[W]e are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of ... imposters'" (quoting People v. Ruggles, 8 Johns. 290, 295 (N.Y. Sup. Ct. 1811))); see also Vidal v. Philadelphia, 2 How. 127, 198-199 (1844). These views should not be read as those of religious zealots. Chief Justice Marshall himself penned the historical genesis of the Court's assertion that our "'institutions presuppose a Supreme Being,'" see Zorach, 343 U.S., at 313, writing that the "American population is entirely Christian, & with us, Christianity & Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it." Letter from John Marshall to Jasper Adams (May 9, 1833) (quoted in Dreisbach 18-19). Accord, Story §988, p. 700 ("[A]t the time of the adoption of the constitution, . . . the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state ..." (footnote omitted)). Footnote 31Justice Scalia's characterization of this conclusion as nothing more than my own personal "assurance" is misleading to say the least. McCreary County, post, at 13. Reliance on our Nation's early constitutional scholars is common in this Court's opinions. In particular, the author of the plurality once noted that "Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared." Wallace, 515 U.S. 506, 510-511 (1995) (Fifth Amendment); Harmelin v. Michigan, 501 U.S. 957, 981-982 (1991) (Eighth Amendment). Footnote 32Justice Scalia's answer--that incorporation does not empty "the incorporated provisions of their original meaning," McCreary County, post, at 15--ignores the fact that the Establishment Clause has its own unique history. There is no evidence, for example, that incorporation of the Confrontation Clause ran contrary to the core of the Clause's original understanding. There is, however, some persuasive evidence to this effect regarding the Establishment Clause. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in judgment) (arguing that the Clause was originally understood to be a "federalism provision" intended to prevent "Congress from interfering with state establishments"). It is this unique history, not incorporation writ large, that renders incoherent the postincorporation reliance on the Establishment Clause's original understanding. Justice Thomas, at least, has faced this problem head-on. See id., at 45 (opinion concurring in judgment). But even if the decision to incorporate the Establishment Clause was misguided, it is at this point unwise to reverse course given the weight of precedent that would have to be cast aside to reach the intended result. See Cardozo, The Nature of the Judicial Process 149 (1937) ("The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case"). Footnote 33See Lee, 465 U.S. 668, 716 (1984) (Brennan, J., dissenting) (same); cf. Feldman, Intellectual Origins of the Establishment Clause, 77 N.Y.U.L.Rev. 346, 404-405 (2002) (noting that, for the Framers, "the term 'establishment' was a contested one" and that the word "was used in both narrow and expansive ways in the debates of the time"). Footnote 34See Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale L.J. 2309, 2337-2342 (1995) ("Equal protection had not been identified with social integration when the Fourteenth Amendment was drafted in 1866, nor when it was ratified in 1868, nor when Plessy [v. Ferguson, 163 U.S. 537] was decided in 1896"); see also 1 L. Tribe, American Constitutional Law §1-14, pp. 54-55, and n. 19 (3d ed. 2000) (collecting scholarship). Footnote 35Justice Thomas contends that the Establishment Clause cannot include such a neutrality principle because the Clause reaches only the governmental coercion of individual belief or disbelief. Ante, at 4 (concurring opinion). In my view, although actual religious coercion is undoubtedly forbidden by the Establishment Clause, that cannot be the full extent of the provision's reach. Jefferson's "wall" metaphor and his refusal to issue Thanksgiving proclamations, see supra, at 19, would have been nonsensical if the Clause reached only direct coercion. Further, under the "coercion" view, the Establishment Clause would amount to little more than a replica of our compelled speech doctrine, see, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943), with a religious flavor. A Clause so interpreted would not prohibit explicit state endorsements of religious orthodoxies of particular sects, actions that lie at the heart of what the Clause was meant to regulate. The government could, for example, take out television advertisements lauding Catholicism as the only pure religion. Under the reasoning endorsed by Justice Thomas, those programs would not be coercive because the viewer could simply turn off the television or ignore the ad. See ante, at 3 ("[T]he mere presence of the monument ... involves no coercion" because the passerby "need not stop to read it or even to look at it"). Further, the notion that the application of a "coercion" principle would somehow lead to a more consistent jurisprudence is dubious. Enshrining coercion as the Establishment Clause touchstone fails to eliminate the difficult judgment calls regarding "the form that coercion must take." McCreary County, post, at 25 (Scalia, J., dissenting). Coercion may seem obvious to some, while appearing nonexistent to others. Compare SantaFe Independent School Dist., 370 U.S. 421, 431 (1962) ("When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain"). In short, "reasonable people could, and no doubt would, argue about whether coercion existed in a particular situation." Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y. U. L.Rev. 346, 415 (2002). FOOTNOTESFootnote 1The clarity of the religious manifestation in Stone was unaffected by the State's effort to obscure it: the Kentucky statute that mandated posting the Commandments in classrooms also required the addition to every posting of a notation reading, "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." 449 U.S., at 39-40, n.1. In the present case, the religious purpose was evident on the partof the donating organization. When the Fraternal Order of Eagles, the group that gave the monument to the State of Texas, donated identical monuments to other jurisdictions, it was seeking to impart a religious message. See Adland v. Russ, 307 F.3d 471, 475 (CA6 2002) (quoting the Eagles' statement in a letter written to Kentucky when a monument was donated to that Commonwealth: "Most of today's younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God . . ."). Accordingly, it was not just the terms of the moral code, but the proclamation that the terms of the code were enjoined by God, that the Eagles put forward in the monuments they donated. Footnote 2That the monument also surrounds the text of the Commandments with various American symbols (notably the U.S. flag and a bald eagle) only underscores the impermissibility of Texas's actions: by juxtaposing these patriotic symbols with the Commandments and other religious signs, the monument sends the message that being American means being religious (and not just being religious but also subscribing to the Commandments, i.e., practicing a monotheistic religion). Footnote 3There is no question that the State in its own right is broadcasting the religious message. When Texas accepted the monument from the Eagles, the state legislature, aware that the Eagles "for the past several years have placed across the country . . . parchment plaques and granite monoliths of the Ten Commandments . . . [in order] to promote youth morality and help stop the alarming increase in delinquency," resolved "that the Fraternal Order of the Eagles of the State of Texas be commended and congratulated for its efforts and contributions in combating juvenile delinquency throughout our nation." App. 97. The State, then, expressly approved of the Eagles' proselytizing, which it made on its own. Footnote 4For similar reasons, the other displays of the Commandments that the plurality mentions, ante, at 9, do not run afoul of the Establishment Clause. The statues of Moses and St. Paul in the Main Reading Room of the Library of Congress are 2 of 16 set in close proximity, statues that "represent men illustrious in the various forms of thought and activity ...." The Library of Congress: The Art and Architecture of the Thomas Jefferson Building 127 (J. Cole and H. Reeds eds. 1997). Moses and St. Paul represent religion, while the other 14 (a group that includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent the nonreligious categories of philosophy, art, history, commerce, science, law, and poetry. Ibid. Similarly, the sculpture of the woman beside the Decalogue in the Main Reading Room is one of 8 such figures "represent[ing] eight characteristic features of civilized life and thought," the same 8 features (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16 statues represent. Id., at 125. The inlay on the floor of the National Archives Building is one of four such discs, the collective theme of which is not religious. Rather, the discs "symbolize the various types of Government records that were to come into the National Archive." Letter from Judith A. Koucky, Archivist, Records Control Section to Catherine Millard, Oct. 1, 2003 (on file with Clerk of the Court). (The four categories are war and defense, history, justice, and legislation. Each disc is paired with a winged figure; the disc containing the depiction of the Commandments, a depiction that, notably, omits the Commandments' text, is paired with a figure representing legislation. Ibid.) As for Moses's "prominen[t] featur[ing] in the Chamber of the United States House of Representatives," ante, at 9 (plurality opinion), Moses is actually 1 of 23 portraits encircling the House Chamber, each approximately the same size, having no religious theme. The portraits depict "men noted in history for the part they played in the evolution of what has become American law." Art in the United States Capitol 282; House Doc. No. 94-660 (1978). More importantly for purposes of this case, each portrait consists only of the subject's face; the Ten Commandments appear nowhere in Moses's portrait. Footnote 5Similarly permissible, though obviously of a different character, are laws that can be traced back to the Commandments (even the more religious ones) but are currently supported by nonreligious considerations. See McCreary County v. American Civil Liberties Union of Ky., post, at 10 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U.S. 420 (1961), the Court "upheld Sunday closing laws on practical secular grounds after finding that the government had forsaken the religious purposes motivating centuries-old predecessor laws"). Footnote 6It is true that the Commandments monument is unlike the display of the Commandments considered in the other Ten Commandments case we decide today, McCreary County. There the Commandments were posted at the behest of the county in the first instance, whereas the State of Texas received the monument as a gift from the Eagles, which apparently conceived of the donation at the suggestion of a movie producer bent on promoting his commercial film on the Ten Commandments, Books v. Elkhart, 235 F.3d 292, 294-295 (CA7 2000), cert. denied, 532 U.S. 1058 (2001). But this distinction fails to neutralize the apparent expression of governmental intent to promote a religious message: although the nativity scene in Allegheny County was donated by the Holy Name Society, we concluded that "[n]o viewer could reasonably think that [the scene] occupies [its] location [at the seat of county government] without the support and approval of the government." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 599-600 (1989). Footnote 7In any event, the fact that we have been, as the plurality says, "particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools," ante, at 11, does not of course mean that anything goes outside the schoolhouse. As cases like County of Allegheny and Lynch v. Donnelly, 465 U.S. 668 (1984), illustrate, we have also closely scrutinized government displays of religious symbols. And for reasons discussed in the text, the Texas monument cannot survive even a relaxed level of scrutiny.

conservative

public_entity

first_amendment

2003-038-01

United States Supreme Court RAYMOND B. YATES, M. D., P. C. PROFIT SHARING PLAN et al. v. HENDON, TRUSTEE(2004) No. 02-458 Argued: January 13, 2004Decided: March 2, 2004 Enacted "to protect ... the interests of participants in employee benefit plans and their beneficiaries," 29 U.S.C. §1001(b), the Employee Retirement Income Security Act of 1974 (ERISA) comprises four titles. Relevant here, Title I, 29 U.S. C. §1001 et seq., mandates minimum participation, vesting, and funding schedules for covered pension plans, and establishes fiduciary conduct standards for plan administrators. Title II, codified in 26 U.S. C., amended various Internal Revenue Code (IRC) provisions pertaining to qualification of pension plans for special tax treatment, in order, inter alia, to conform to Title I's standards. Title III, 29 U.S. C. §1201 et seq., contains provisions designed to coordinate enforcement efforts of different federal departments. Title IV, 29 U.S.C. §1301 et seq., created the Pension Benefit Guaranty Corporation and an insurance program to protect employees against the loss of "nonforfeitable" benefits upon termination of pension plans lacking sufficient funds to pay benefits in full. This case concerns Title I's definition and coverage provisions, though those provisions, indicating who may participate in an ERISA-sheltered plan, inform each of ERISA's four titles. Title I defines "employee benefit plan" as "an employee welfare benefit plan or an employee pension benefit plan or ... both," §1002(3); "participant" to encompass "any employee ... eligible to receive a benefit ... from an employee benefit plan," §1002(7); "employee" as "any individual employed by an employer," §1002(6); and "employer" to include "any person acting ... as an employer, or ... in the interest of an employer," §1002(5). Yates was sole shareholder and president of a professional corporation that maintained a profit sharing plan (Plan). From the Plan's inception, at least one person other than Yates or his wife was a Plan participant. The Plan qualified for favorable tax treatment under IRC §401. As required by the IRC, 26 U.S.C. §401(a)(13), and ERISA, 29 U.S. C. §1056(d), the Plan contained an anti-alienation provision. Entitled "Spendthrift Clause," the provision stated, in relevant part:"Except for ... loans to Participants as [expressly provided for in the Plan], no benefit or interest available hereunder will be subject to assignment or alienation." In December 1989, Yates borrowed $20,000 from another of his corporation's pension plans (which later merged into the Plan), but failed to make any of the required monthly payments. In November 1996, however, Yates paid off the loan in full with the proceeds of the sale of his house. Three weeks later, Yates's creditors filed an involuntary petition against him under Chapter 7 of the Bankruptcy Code. Respondent Hendon, the Bankruptcy Trustee, filed a complaint against petitioners (the Plan and Yates, as Plan trustee), asking the Bankruptcy Court to avoid the loan repayment. Granting Hendon summary judgment, the Bankruptcy Court first determined that the repayment qualified as a preferential transfer under 11 U.S.C. §547(b). That finding was not challenged on appeal. The Bankruptcy Court then held that the Plan and Yates, as Plan trustee, could not rely on the Plan's anti-alienation provision to prevent Hendon from recovering the loan repayment for the bankruptcy estate. That holding was dictated by Sixth Circuit precedent, under which a self-employed owner of a pension plan's corporate sponsor could not "participate" as an "employee" under ERISA and therefore could not use ERISA's provisions to enforce the restriction on transfer of his beneficial interest in the plan. The District Court and the Sixth Circuit affirmed on the same ground. The Sixth Circuit's determination that Yates was not a "participant" in the Plan for ERISA purposes obviated the question whether, had Yates qualified as such a participant, his loan repayment would have been shielded from the Bankruptcy Trustee's reach. Held:The working owner of a business (here, the sole shareholder and president of a professional corporation) may qualify as a "participant" in a pension plan covered by ERISA. If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants. Such a working owner, in common with other employees, qualifies for the protections ERISA affords plan participants and is governed by the rights and remedies ERISA specifies. Pp.8-20. (a)Congress intended working owners to qualify as plan participants. Because ERISA's definitions of "employee" and, in turn, "participant" are uninformative, the Court looks to other ERISA provisions for instruction. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323. ERISA's multiple textual indications that Congress intended working owners to qualify as plan participants provide, in combination, "specific guidance," ibid., so there is no cause in this case to resort to common law. ERISA's enactment in 1974 did not change the existing backdrop of IRC provisions permitting corporate shareholders, partners, and sole proprietors to participate in tax-qualified pension plans. Rather, Congress' objective was to harmonize ERISA with these longstanding tax provisions. Title I of ERISA and related IRC provisions expressly contemplate the participation of working owners in covered benefit plans. Most notably, Title I frees certain plans in which working owners likely participate from all of ERISA's fiduciary responsibility requirements. See 29 U.S.C. §1101(a) and 26 U.S.C. §§414(q)(1)(A) and 416(i)(1)(B)(i). Title I also contains more limited exemptions from ERISA's fiduciary responsibility requirements for plans that ordinarily include working owners as participants. See 29 U.S.C. §§1103(a) and (b)(3)(A) and 26 U.S.C. §§401(c)(1) and (2)(A)(i), 1402(a) and (c). Further, Title I contains exemptions from ERISA's prohibited transaction exemptions, which, like the fiduciary responsibility exemptions, indicate that working owners may participate in ERISA-qualified plans. See 29 U.S. C. §§1108(b)(1)(B) and (d)(1) and 26 U.S.C. §401(c)(3). Exemptions of this order would be unnecessary if working owners could not qualify as participants in ERISA-protected plans in the first place. Provisions of Title IV of ERISA are corroborative. For example, Title IV does not apply to plans "established and maintained exclusively for substantial owners," §1321(b)(9) (emphasis added), a category that includes sole proprietors and shareholders and partners with a ten percent or greater ownership interest, §1322(b)(5)(A). But Title IV does cover plans in which substantial owners participate along with other employees. See §1322(b)(5)(B). Particularly instructive, Title IV and the IRC, as amended by Title II, clarify a key point missed by several lower courts:Under ERISA, a working owner may wear two hats, i.e., he can be an employee entitled to participate in a plan and, at the same time, the employer who established the plan. See §1301(b)(1) and 26 U.S. C. §401(c)(4). Congress' aim to promote and facilitate employee benefit plans is advanced by the Court's reading of ERISA's text. The working employer's opportunity personally to participate and gain ERISA coverage serves as an incentive to the creation of plans that will benefit employer and nonowner employees alike. Treating the working owner as a participant in an ERISA-sheltered plan also avoids the anomaly that the same plan will be controlled by discrete regimes: federal-law governance for the nonowner employees; state-law governance for the working owner. Excepting working owners from ERISA's coverage is hardly consistent with the statutory goal of "uniform national treatment of pension benefits," Patterson v. Shumate, 504 U.S. 753, 765, and would generate administrative difficulties. A 1999 Department of Labor advisory opinion (hereinafter Advisory Opinion 99-04A) accords with the Court's comprehension of Title I's definition and coverage provisions. Concluding that working owners may qualify as participants in ERISA-protected plans, the Department's opinion reflects a "body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140. Pp.8-14. (b)This Court rejects the lower courts' position that a working owner may rank only as an "employer" and not also as an "employee" for purposes of ERISA-sheltered plan participation. The Sixth Circuit's leading decision in point relied, in large part, on an incorrect reading of a portion of a Department of Labor regulation, 29 CFR §2510.3-3, which states:"[T]he term 'employee benefit plan' [as used in Title I] shall not include any plan ... under which no employees are participants"; "[f]or purposes of this section," "an individual and his or her spouse shall not be deemed to be employees with respect to a ... business" they own. (Emphasis added.) In common with other Courts of Appeals that have held working owners do not qualify as participants in ERISA-governed plans, the Sixth Circuit apparently understood the regulation to provide a generally applicable definition of "employee," controlling for all Title I purposes. The Labor Department's Advisory Opinion 99-04A, however, interprets the regulation to mean that the statutory term "employee benefit plan" does not include a plan whose only participants are the owner and his or her spouse, but does include a plan that covers as participants one or more common-law employees, in addition to the self-employed individuals. This agency view, overlooked by the Sixth Circuit, merits the Judiciary's respectful consideration. Cf. Clackamas Gastroenterology Assoc., P.C., 538 U.S., at ___. Moreover, the Department's regulation itself reveals the definitional prescription's limited scope. The prescription describes "employees" only "[f]or purposes of this section," i.e., the section defining "employee benefit plans." Accordingly, the regulation addresses only what plans qualify as "employee benefit plans" under ERISA's Title I. Plans that cover only sole owners or partners and their spouses, the regulation instructs, fall outside Title I's domain, while plans that cover working owners and their nonowner employees fall entirely within ERISA's compass. The Sixth Circuit's leading decision also mistakenly relied on ERISA's "anti-inurement" provision, 29 U.S. C. §1103(c)(1), which states that plan assets shall not inure to the benefit of employers. Correctly read, that provision does not preclude Title I coverage of working owners as plan participants. It demands only that plan assets be held to supply benefits to plan participants. Its purpose is to apply the law of trusts to discourage abuses such as self-dealing, imprudent investment, and misappropriation of plan assets, by employers and others. Those concerns are not implicated by paying benefits to working owners who participate on an equal basis with nonowner employees in ERISA-protected plans. This Court expresses no opinion as to whether Yates himself, in his handling of loan repayments, engaged in conduct inconsistent with the anti-inurement provision, an issue not yet reached by the courts below. Pp.14-20. (c)Given the undisputed fact that Yates failed to honor his loan's periodic repayment requirements, these questions should be addressed on remand:(1)Did the November 1996 close-to-bankruptcy repayments, despite the prior defaults, become a portion of Yates's interest in the Plan that is excluded from his bankruptcy estate and (2) if so, were the repayments beyond the reach of the Bankruptcy Trustee's power to avoid and recover preferential transfers? P. 20. 287 F.3d 521, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O'Connor, Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., and Thomas, J., each filed an opinion concurring in the judgment. RAYMOND B. YATES, M.D., P.C. PROFIT SHARINGPLAN, and RAYMOND B. YATES, trustee,PETITIONERS v. WILLIAM T. HENDON,trustee on writ of certiorari to the united states court of appeals for the sixth circuit [March 2, 2004] Justice Ginsburg delivered the opinion of the Court. This case presents a question on which federal courts have divided: Does the working owner of a business (here, the sole shareholder and president of a professional corporation) qualify as a "participant" in a pension plan covered by the Employee Retirement Income Security Act of 1974 (ERISA or Act), 88 Stat. 832, as amended, 29 U.S.C. §1001 et seq. The answer, we hold, is yes: If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants. Such a working owner, in common with other employees, qualifies for the protections ERISA affords plan participants and is governed by the rights and remedies ERISA specifies. In so ruling, we reject the position, taken by the lower courts in this case, that a business owner may rank only as an "employer" and not also as an "employee" for purposes of ERISA-sheltered plan participation. I A Enacted "to protect ... the interests of participants in employee benefit plans and their beneficiaries," 29 U.S.C. §1001(b), ERISA comprises four titles. Title I, 29 U.S.C. §1001 et seq., "requires administrators of all covered pension plans to file periodic reports with the Secretary of Labor, mandates minimum participation, vesting and funding schedules, establishes standards of fiduciary conduct for plan administrators, and provides for civil and criminal enforcement of the Act." Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359, 361, n.1 (1980). Title II, codified in various parts of Title 26 of the United States Code, "amended various [Internal Revenue Code] provisions ... pertaining to qualification of pension plans for special tax treatment, in order, among other things, to conform to the standards set forth in Title I." 490 U.S. 714, 717 (1989); Brief for United States as Amicus Curiae 2. This case concerns the definition and coverage provisions of Title I, though those provisions, indicating who may participate in an ERISA-sheltered plan, inform each of ERISA's four titles. Title I defines the term "employee benefit plan" to encompass "an employee welfare benefit plan or an employee pension benefit plan or a plan which is both ...." 29 U.S.C. §1002(3). The same omnibus section defines "participant" as "any employee or former employee of an employer, ... who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer ..., or whose beneficiaries may be eligible to receive any such benefit." §1002(7). "Employee," under Title I's definition section, means "any individual employed by an employer," §1002(6), and "employer" includes "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan," §1002(5). B Dr. Raymond B. Yates was the sole shareholder and president of Raymond B. Yates, M.D., P.C., a professional corporation. 287 F.3d 521, 524 (CA6 2002); App. to Pet. for Cert. 10a. The corporation maintained the Raymond B. Yates, M.D., P.C. Profit Sharing Plan (Profit Sharing Plan or Plan), for which Yates was the administrator and trustee. Ibid. From the Profit Sharing Plan's inception, at least one person other than Yates or his wife was a participant. Ibid.; App. 269a. The Profit Sharing Plan qualified for favorable tax treatment under §401 of the Internal Revenue Code (IRC). 287 F.3d, at 524; App. 71a-73a. As required by both the IRC, 26 U.S.C. §401(a)(13), and Title I of ERISA, 29 U.S.C. §1056(d), the Plan contained an anti-alienation provision. That provision, entitled "Spendthrift Clause," stated in relevant part: "Except for ... loans to Participants as [expressly provided for in the Plan], no benefit or interest available hereunder will be subject to assignment or alienation, either voluntarily or involuntarily." App. 252a. In December 1989, Yates borrowed $20,000 at 11 percent interest from the Raymond B. Yates, M.D., P.C. Money Purchase Pension Plan (Money Purchase Pension Plan), which later merged into the Profit Sharing Plan. Id., at 268a-269a. The terms of the loan agreement required Yates to make monthly payments of $433.85 over the five-year period of the loan. Id., at 269a. Yates failed to make any monthly payment. 287 F.3d, at 524. In June 1992, coinciding with the Money Purchase Pension Plan-Profit Sharing Plan merger, Yates renewed the loan for five years. App. 269a. Again, he made no monthly payments. In fact, Yates repaid nothing until November 1996. 287 F.3d, at 524. That month, he used the proceeds from the sale of his house to make two payments totaling $50,467.46, which paid off in full the principal and interest due on the loan. Ibid. Yates maintained that, after the repayment, his interest in the Profit Sharing Plan amounted to about $87,000. App. to Pet. for Cert. 39a. Three weeks after Yates repaid the loan to the Profit Sharing Plan, on December 2, 1996, Yates's creditors filed an involuntary petition against him under Chapter 7 of the Bankruptcy Code. Id., at 12a; accord, App. 300a. In August 1998, respondent William T. Hendon, the Bankruptcy Trustee, filed a complaint, pursuant to 11 U.S.C. §§547(b) and 550, against petitioners Profit Sharing Plan and Yates, in his capacity as the Plan's trustee. App. 1a-3a. Hendon asked the Bankruptcy Court to "avoi[d] the ... preferential transfer by [Yates] to [the Profit Sharing Plan] in the amount of $50,467.46 and [to] orde[r] [the Plan and Yates, as trustee] to pay over to the [bankruptcy] trustee the sum of $50,467.46, plus legal interest . . . , together with costs . . . ." Id., at 3a. On cross-motions for summary judgment, the Bankruptcy Court ruled for Trustee Hendon. App. to Pet. for Cert. 36a-50a. The Bankruptcy Court first determined that the loan repayment qualified as a preferential transfer under 11 U.S.C. §547(b).1 App. to Pet. for Cert. 41a-42a. That finding was not challenged on appeal. The Bankruptcy Court then held that the Profit Sharing Plan and Yates, as trustee, could not rely on the Plan's anti-alienation provision to prevent Hendon from recovering the loan repayment. As "a self-employed owner of the professional corporation that sponsor[ed] the pension plan," the Bankruptcy Court stated, Yates could not "participate as an employee under ERISA and . . . [therefore could not] use its provisions to enforce the restriction on the transfer of his beneficial interest in the Defendant Plan." Id., at 43a-44a. In so ruling, the Bankruptcy Court relied on Circuit precedent, including SEC v. Johnston, 143 F.3d 260 (CA6 1998), and Fugarino v. Hartford Life and Accident Ins. Co., 969 F.2d 178 (CA6 1992). The District Court affirmed the Bankruptcy Court's judgment. App. to Pet. for Cert. 9a-35a. Acknowledging that other Courts of Appeals had reached a different conclusion, id., at 19a, the District Court observed that it was bound by Sixth Circuit precedent. According to the controlling Sixth Circuit decisions, neither a sole proprietor, Fugarino, 969 F.2d, at 186, nor a sole owner of a corporation, Agrawal v. Paul Revere Life Ins. Co., 205 F.3d 297, 302 (2000), qualifies as a "participant" in an ERISA-sheltered employee benefit plan. App. to Pet. for Cert. 20a-21a. Applying Circuit precedent, the District Court concluded: "The fact Dr. Yates was not qualified to participate in an ERISA protected plan means none of the money he contributed to the Plan as an 'employee' was ever part of an ERISA plan. The $50,467.46 he returned to the Plan was not protected by ERISA, because none of the money he had in the Plan was protected by ERISA." Id., at 20a. The Sixth Circuit affirmed the District Court's judgment. 287 F.3d 521. The Court of Appeals adhered to its "published caselaw [holding] that 'a sole proprietor or sole shareholder of a business must be considered an employer and not an employee ... for purposes of ERISA.'" Id., at 525 (quoting Fugarino, 969 F.2d, at 186). "[T]he spendthrift clause in the Yates profit sharing/pension plan," the appeals court accordingly ruled, "[was] not enforceable by Dr. Yates under ERISA." 287 F.3d, at 526. The Sixth Circuit's determination that Yates was not a "participant" in the Profit Sharing Plan for ERISA purposes obviated the question whether, had Yates qualified as such a participant, his loan repayment would have been shielded from the Bankruptcy Trustee's reach. See App. to Pet. for Cert. 46a-47a. We granted certiorari, 539 U.S. --- (2003), in view of the division of opinion among the Circuits on the question whether a working owner may qualify as a participant in an employee benefit plan covered by ERISA. Compare Agrawal, 205 F.3d, at 302 (sole shareholder is not a participant in an ERISA-qualified plan); Fugarino, 969 F.2d, at 186 (sole proprietor is not a participant); Kwatcher v. Massachusetts Serv. Employees Pension Fund, 879 F.2d 957, 963 (CA1 1989) (sole shareholder is not a participant); Giardono v. Jones, 867 F.2d 409, 411-412 (CA7 1989) (sole proprietor is not a participant); Peckham v. Board of Trustees of Int'l Brotherhood of Painters and Allied Trades Union, 653 F.2d 424, 427-428 (CA10 1981) (sole proprietor is not a participant), with Vega v. National Life Ins. Servs., Inc., 188 F.3d 287, 294 (CA5 1999) (co-owner is a participant); Inre Baker, 114 F.3d 636, 639 (CA7 1997) (majority shareholder is a participant); Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 450 (CA4 1993) (sole shareholder is a participant).2 II A ERISA's definitions of "employee," and, in turn, "participant," are uninformative. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) ("ERISA's nominal definition of 'employee' as 'any individual employed by an employer,' is completely circular and explains nothing." (citation omitted)). We therefore look to other provisions of the Act for instruction. See ibid. ERISA's text contains multiple indications that Congress intended working owners to qualify as plan participants. Because these indications combine to provide "specific guidance," ibid., there is no cause in this case to resort to common law.3 Congress enacted ERISA against a backdrop of IRC provisions that permitted corporate shareholders, partners, and sole proprietors to participate in tax-qualified pension plans. Brief for United States as Amicus Curiae 19-20. Working shareholders have been eligible to participate in such plans since 1942. See Revenue Act of 1942, ch. 619, §165(a)(4), 56 Stat. 862 (a pension plan shall be tax-exempt if, inter alia, "the contributions or benefits provided under the plan do not discriminate in favor of employees who are officers, shareholders, persons whose principal duties consist in supervising the work of other employees, or highly compensated employees"). Two decades later, still prior to ERISA's adoption, Congress permitted partners and sole proprietors to establish tax-favored pension plans, commonly known as "H.R. 10" or "Keogh" plans. Self-Employed Individuals Tax Retirement Act of 1962, 76 Stat. 809; Brief for United States as Amicus Curiae 19. Thus, by 1962, working owners of all kinds could contribute to tax-qualified retirement plans. ERISA's enactment in 1974 did not change that situation.4 Rather, Congress' objective was to harmonize ERISA with longstanding tax provisions. Title I of ERISA and related IRC provisions expressly contemplate the participation of working owners in covered benefit plans. Id., at 14-16. Most notably, several Title I provisions partially exempt certain plans in which working owners likely participate from otherwise mandatory ERISA provisions. Exemptions of this order would be unnecessary if working owners could not qualify as participants in ERISA-protected plans in the first place. To illustrate, Title I frees the following plans from the Act's fiduciary responsibility requirements: "(1) a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees; or "(2) any agreement described in section 736 of [the IRC], which provides payments to a retired partner or deceased partner or a deceased partner's successor in interest." 29 U.S.C. §1101(a). The IRC defines the term "highly compensated employee" to include "any employee who ... was a 5-percent owner at any time during the year or the preceding year." 26 U.S.C. §414(q)(1)(A). A "5-percent owner," the IRC further specifies, is "any person who owns ... more than 5 percent of the outstanding stock of the corporation or stock possessing more than 5 percent of the total combined voting power of all stock of the corporation" if the employer is a corporation, or "any person who owns more than 5 percent of the capital or profits interest in the employer" if the employer is not a corporation. §416(i)(1)(B)(i). Under these definitions, some working owners would fit the description "highly compensated employees." Similarly, agreements that make payments to retired partners, or to deceased partners' successors in interest, surely involve plans in which working partners participate. Title I also contains more limited exemptions from ERISA's fiduciary responsibility requirements. These exemptions, too, cover plans that ordinarily include working owners as participants. To illustrate, assets of an employee benefit plan typically must be held in trust. See 29 U.S.C. §1103(a). That requirement, however, doesnot apply, inter alia, "to a plan ... some or all of the participants of which are employees described in section 401(c)(1) of [the IRC]." 29 U.S.C. §1103(b)(3)(A). IRC §401(c)(1)(A) defines an "employee" to include "a self-employed individual"; and IRC §§401(c)(1)(B) and (2)(A)(i), in turn, define "a self-employed individual" to cover an individual with "earned income" from "a trade or business in which personal services of the taxpayer are a material income-producing factor." This definition no doubt encompasses working sole proprietors and partners. 26 U.S.C. §§1402(a) and (c). Title I also contains exemptions from ERISA's prohibited transaction provisions. Like the fiduciary responsibility exemptions, these exemptions indicate that working owners may participate in ERISA-qualified plans. For example, although Title I generally bars transactions between a plan and a party in interest, 29 U.S.C. §1106, the Act permits, among other exceptions, loans to plan participants if certain conditions are satisfied, §1108(b)(1). One condition is that loans must not be "made available to highly compensated employees ... in an amount greater than the amount made available to other employees." §1108(b)(1)(B). As just observed, see supra, at 9-10, some working owners, including shareholder-employees, qualify as "highly compensated employees." Title I goes on to exclude "owner-employees," as defined in the IRC, from the participant loan exemption. §1108(d)(1). Under the IRC's definition, owner-employees include partners "who ow[n] more than 10 percent of either the capital interest or the profits interest in [a] partnership" and sole proprietors, but not shareholder-employees. 26 U.S.C. §401(c)(3). In sum, Title I's provisions involving loans to plan participants, by explicit inclusion or exclusion, assume that working owners--shareholder-employees, partners, and sole proprietors--may participate in ERISA-qualified benefit plans. Provisions of Title IV of ERISA are corroborative. Brief for United States as Amicus Curiae 17, and n.8. Title IV does not apply to plans "established and maintained exclusively for substantial owners," 29 U.S.C. §1321(b)(9) (emphasis added), a category that includes sole proprietors and shareholders and partners with a ten percent or greater ownership interest, §1322(b)(5)(A). But Title IV does cover plans in which substantial owners participate along with other employees. See §1322(b)(5)(B). In addition, Title IV does not cover plans established by "professional service employers" with 25 or fewer active participants. §1321(b)(13). Yates's medical practice was set up as a professional service employer. See §1321(c)(2)(A) (a "professional service employer" is "any proprietorship, partnership, corporation ... owned or controlled by professional individuals ... the principal business of which is the performance of professional services"). But significantly larger plans--plans covering more than 25 employees--established by a professional service employer would presumably qualify for protection. Particularly instructive, Title IV and the IRC, as amended by Title II, clarify a key point missed by several lower courts: Under ERISA, a working owner may have dual status, i.e., he can be an employee entitled to participate in a plan and, at the same time, the employer (or owner or member of the employer) who established the plan. Both Title IV and the IRC describe the "employer" of a sole proprietor or partner. See 29 U.S.C. §1301(b)(1) ("An individual who owns the entire interest in an unincorporated trade or business is treated as his own employer, and a partnership is treated as the employer of each partner who is an employee within the meaning of section 401(c)(1) of [the IRC]."); 26 U.S.C. §401(c)(4) ("An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer. A partnership shall be treated as the employer of each partner who is an employee within the meaning of [§401(c)(1)]."). These descriptions expressly anticipate that a working owner can wear two hats, as an employer and employee. Cf. Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, --- (2003) (slip op., at 2-3) (Ginsburg, J., dissenting) ("Clackamas readily acknowledges that the physician-shareholders are 'employees' for ERISA purposes."). In sum, because the statute's text is adequately informative, we need not look outside ERISA itself to conclude with security that Congress intended working owners to qualify as plan participants.5 Congress' aim is advanced by our reading of the text. The working employer's opportunity personally to participate and gain ERISA coverage serves as an incentive to the creation of plans that will benefit employer and nonowner employees alike. See Brief for United States as Amicus Curiae 21-22. Treating working owners as participants not only furthers ERISA's purpose to promote and facilitate employee benefit plans. Recognizing the working owner as an ERISA-sheltered plan participant also avoids the anomaly that the same plan will be controlled by discrete regimes: federal-law governance for the nonowner employees; state-law governance for the working owner. See, e.g., Agrawal, 205 F.3d, at 302 (because sole shareholder does not rank as a plan participant under ERISA, his state-law claims against insurer are not preempted). ERISA's goal, this Court has emphasized, is "uniform national treatment of pension benefits." Patterson v. Shumate, 504 U.S. 753, 765 (1992). Excepting working owners from the federal Act's coverage would generate administrative difficulties and is hardly consistent with a national uniformity goal. Cf. Madonia, 11 F.3d, at 450 ("Disallowing shareholders ... from being plan 'participants' would result in disparate treatment of corporate employees' claims, thereby frustrating the statutory purpose of ensuring similar treatment for all claims relating to employee benefit plans."). We note finally that a 1999 Department of Labor advisory opinion accords with our comprehension of Title I's definition and coverage provisions. Pension and Welfare Benefits Admin., U.S. Dept. of Labor, Advisory Opinion 99-04A, 26 BNA Pension and Benefits Rptr. 559 (hereinafter Advisory Opinion 99-04A). Confirming that working owners may qualify as participants in ERISA-protected plans, the Department's opinion concludes: "In our view, the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include 'working owners' within the definition of 'participant' for purposes of Title I of ERISA. Congress could not have intended that a pension plan operated so as to satisfy the complex tax qualification rules applicable to benefits provided to 'owner-employees' under the provisions of Title II of ERISA, and with respect to which an employer faithfully makes the premium payments required to protect the benefits payable under the plan to such individuals under Title IV of ERISA, would somehow transgress against the limitations of the definitions contained in Title I of ERISA. Such a result would cause an intolerable conflict between the separate titles of ERISA, leading to the sort of 'absurd results' that the Supreme Court warned against in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992)." Id., at 560-561 (footnote omitted). This agency view on the qualification of a self-employed individual for plan participation reflects a "body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). B The Sixth Circuit's leading decision in point--its 1992 determination in Fugarino--relied, in large part, on an incorrect reading of a Department of Labor regulation, 29 CFR §2510.3-3. The Fugarino court read the Department's regulation to rule out classification of a working owner as an employee of the business he owns. Entitled "Employee benefit plan," the regulation complements §3(3) of ERISA, 29 U.S.C. §1002(3), which defines "employee benefit plan," see supra, at 2; the regulation provides, in relevant part: "(b) Plans without employees. For purposes of title I of the Act and this chapter, the term 'employee benefit plan' shall not include any plan, fund or program, other than an apprenticeship or other training program, under which no employees are participants covered under the plan, as defined in paragraph (d) of this section. For example, a so-called 'Keogh' or 'H.R. 10' plan under which only partners or only a sole proprietor are participants covered under the plan will not be covered under title I. However, a Keogh plan under which one or more common law employees, in addition to the self-employed individuals, are participants covered under the plan, will be covered under title I. ... "(c) Employees. For purposes of this section: "(1) An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse, and "(2) A partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership." 29 CFR §2510.3-3 (2003) (emphasis added and deleted). In common with other Courts of Appeals that have held working owners do not qualify as participants in ERISA-governed employee benefit plans, the Sixth Circuit apparently understood the regulation to provide a generally applicable definition of the term "employee," controlling for all Title I purposes. Fugarino, 969 F.2d, at 185-186 ("As a result of [the] regulatio[n], a plan whose sole beneficiaries are the company's owners cannot qualify as a plan under ERISA. Further, an employer cannot ordinarily be an employee or participant under ERISA." (citation omitted)). See also Kwatcher, 879 F.2d, at 961 ("By its terms, the regulation unambiguously debars a sole share-holder ... from 'employee' status, notwithstanding thathe may work for the corporation he owns, shoulder to shoulder with eligible (non-owner) employees."); Giardono, 867 F.2d, at 412 ("[This] regulatio[n] exclude[s] fromthe definition of an employee any individual who wholly owns a trade or business, whether incorporated orunincorporated."). Almost eight years after its decision in Fugarino, in Agrawal, the Sixth Circuit implied that it may have misread the regulation: "Th[e] limiting definition of employee [in §2510.3-3(c)] addresses the threshold issue of whether an ERISA plan exists. It is not consistent with the purpose of ERISA to apply this limiting definition of employee to the statutory definitions of participant and beneficiary." 205 F.3d, at 303. The Circuit, however, did not overrule its earlier interpretation. See 287 F.3d, at 525 (case below) ("[T]he three judge panel before which this appeal is currently pending has no authority to overrule Fugarino."); Agrawal, 205 F.3d, at 302 ("the decision in the present case is preordained by the Fugarino holding"). The Department of Labor's 1999 advisory opinion, see supra, at 13-14, interprets the "Employee benefit plan" regulation as follows: "In its regulation at 29 C. F.R. 2510.3-3, the Department clarified that the term 'employee benefit plan' as defined in section 3(3) of Title I does not include a plan the only participants of which are '[a]n individual and his or her spouse ... with respect to a trade of business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse' or '[a] partner in a partnership and his or her spouse.' The regulation further specifies, however, that a plan that covers as participants 'one or more common law employees, in addition to the self-employed individuals' will be included in the definition of 'employee benefit plan' under section 3(3). The conclusion of this opinion, that such 'self-employed individuals' are themselves 'participants' in the covered plan, is fully consistent with that regulation." Advisory Opinion 99-04A, at 561, n.7 (emphasis added). This agency view, overlooked by the Sixth Circuit, see Brief for United States as Amicus Curiae 26, merits the Judiciary's respectful consideration. Cf. Clackamas Gastroenterology Assoc., P.C., 538 U.S., at --- (slip op., at 9) (EEOC guidelines under the Americans with Disabilities Act of 1990 are persuasive). The Department's regulation itself reveals the definitional prescription's limited scope. The prescription describes "employees" only "[f]or purposes of this section," see supra, at 15 (emphasis deleted), i.e., the section defining "employee benefit plans." Accordingly, the regulation addresses only what plans qualify as "employee benefit plans" under Title I of ERISA. Plans that cover only sole owners or partners and their spouses, the regulation instructs, fall outside Title I's domain.6 Plans covering working owners and their nonowner employees, on the other hand, fall entirely within ERISA's compass.7 See Vega, 188 F.3d, at 294 ("We ... interpret the regulatio[n] to define employee only for purposes of determining the existence of an ERISA plan."); Madonia, 11 F.3d, at 449-450 ("[T]he regulation does not govern the issue of whether someone is a 'participant' in an ERISA plan, once the existence of that plan has been established. This makes perfect sense: once a plan has been established,it would be anomalous to have those persons bene-fitting from it governed by two disparate sets of legal obligations."). Also in common with other Courts of Appeals that have denied participant status to working owners, the Sixth Circuit's leading decision mistakenly relied, in addition, on ERISA's "anti-inurement" provision, 29 U.S.C. §1103(c)(1), which prohibits plan assets from inuring to the benefit of employers. See Fugarino, 969 F.2d, at 186 ("A fundamental requirement of ERISA is that 'the assets of a plan shall never inure to the benefit of any employer ....'"); Kwatcher, 879 F.2d, at 960 ("Once a person has been found to fit within the 'employer' integument, [§1103(c)(1)] prohibits payments to him from a qualified plan."); Giardono, 867 F.2d, at 411 ("It is a fundamental requirement of ERISA that '... the assets of a plan shall never inure to the benefit of any employer ....'"). Correctly read, however, the anti-inurement provision does not preclude Title I coverage of working owners as plan participants. It states that, with enumerated exceptions, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan." 29 U.S.C. §1103(c)(1). The provision demands only that plan assets be held for supplying benefits to plan participants. Like the Department of Labor regulation, see supra, at 14-15, the anti-inurement provision does not address the discrete question whether working owners, along with nonowner employees, may be participants in ERISA-sheltered plans. As the Fifth Circuit observed in Vega: "Th[e] [anti-inurement] provision refers to the congressional determination that funds contributed by the employer (and, obviously, by the [nonowner] employees ...) must never revert to the employer; it does not relate to plan benefits being paid with funds or assets of the plan to cover a legitimate pension or health benefit claim by an employee who happens to be a stockholder or even the sole shareholder of a corporation." 188 F.3d, at 293, n.5. ERISA's anti-inurement provision is based on the analogous exclusive benefit provision in the IRC, 26 U.S.C. §401(a)(2), which has never been understood to bar tax-qualified plan participation by working owners. See H.R. Conf. Rep. No. 93-1280, pp. 302-303 (1974); Brief for United States as Amicus Curiae 29. The purpose of the anti-inurement provision, in common with ERISA's other fiduciary responsibility provisions, is to apply the law of trusts to discourage abuses such as self-dealing, imprudent investment, and misappropriation of plan assets, by employers and others. See, e.g., Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 209 (CA8 1996). Those concerns are not implicated by paying benefits to working owners who participate on an equal basis with nonowner employees in ERISA-protected plans. In sum, the anti-inurement provision, like the Department of Labor regulation, establishes no categorical barrier to working owner participation in ERISA plans. Whether Yates himself, in his handling of loan repayments, see supra, at 4, engaged in conduct inconsistent with the anti-inurement provision is an issue not yet reached by the courts below, one on which we express no opinion. * * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion, including consideration of questions earlier raised but not resolved. Specifically, given the undisputed facts concerning Yates's handling of the loan, i.e., his failure to honor the periodic repayment requirements: (1) Did the November 1996 close-to-bankruptcy repayments, despite the prior defaults, become "a portion of [Yates's] interest in a qualified retirement plan ... excluded from his bankruptcy estate," App. to Pet. for Cert. 40a; and (2) if so, were the repayments "beyond the reach of [the Bankruptcy] [T]rustee's power to avoid and recover preferential transfers," id., at 47a? It is so ordered. RAYMOND B. YATES, M.D., P.C. PROFIT SHARINGPLAN, and RAYMOND B. YATES, trustee,PETITIONERS v. WILLIAM T. HENDON,trustee on writ of certiorari to the united states court of appeals for the sixth circuit [March 2, 2004] Justice Scalia, concurring in the judgment. The Court uses a sledgehammer to kill a gnat--though it may be a sledgehammer prescribed by United States v. Mead Corp., 533 U.S. 218 (2001). I dissented from that case, see id., at 257, and remain of the view that authoritative interpretations of law by the implementing agency, if reasonable, are entitled to respect. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In the present case the Solicitor General of the United States, in a brief signed by the Acting Solicitor of Labor, has put forward as the "considered view of the agency charged by Congress with the administration and enforcement of Title I of ERISA," an interpretation of the relevant terms of that Act which would allow working owners (including sole owners, such as Dr. Yates) to be plan participants under the Employee Retirement Income Security Act of 1974 (ERISA). Brief for United States as Amicus Curiae 26. There is no doubt that this position is the official view of the Department of Labor, and that it has not been contrived for this litigation. The Solicitor General's brief relies upon a Department of Labor advisory opinion, issued more than five years ago, which concluded that "the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include 'working owners' within the definition of 'participant' for purposes of Title I of ERISA." Pension and Welfare Benefits Admin., U.S. Dept. of Labor, Advisory Opinion 99-04A (Feb. 4, 1999), 26 BNA Pension and Benefits Rptr. 559, 560 (1999). The Department's interpretive conclusion is certainly reasonable (the Court's lengthy analysis says that it is inevitable); it is therefore binding upon us. See Barnhart v. Thomas, 540 U.S. __, __ (2003) (slip op., at 6). I would reverse the judgment of the Sixth Circuit on that basis. The Court's approach, which denies many agency interpretations their conclusive effect and thrusts the courts into authoritative judicial interpretation, deprives administrative agencies of two of their principal virtues: (1) the power to resolve statutory questions promptly, and with nationwide effect, and (2) the power (within the reasonable bounds of the text) to change the application of ambiguous laws as time and experience dictate. The Court's approach invites lengthy litigation in all the circuits--the product of which (when finally announced by this Court) is a rule of law that only Congress can change. RAYMOND B. YATES, M.D., P.C. PROFIT SHARINGPLAN, and RAYMOND B. YATES, trustee,PETITIONERS v. WILLIAM T. HENDON,trustee on writ of certiorari to the united states court of appeals for the sixth circuit [March 2, 2004] Justice Thomas, concurring in the judgment. I agree with the Court that the judgment of the Court of Appeals should be reversed. The Court persuasively addresses the Court of Appeals' many errors in this case. See ante, at 14-19. I do not, however, find convincing the Court's reliance on textual "indications," ante, at 8. The text of the Employee Retirement Income Security Act of 1974 (ERISA), is certainly consistent with the Court's interpretation of the word "employee" to include so-called "working owners."** Ibid. However, the various Title I exemptions relied upon so heavily by the Court, see ante, at 9-11, are equally consistent with an interpretation of "employee" that would not include all "working owners." As an example, the Court places weight on the exception to the exemption from 29 U.S.C. §1106, which bars loans made to parties in interest that are "'made available to highly compensated employees ... in an amount greater than the amount made available to other employees.'" Ante, at 10-11 (quoting 29 U.S.C. §1108(b)(1)(B)). The Court notes that "some working owners . . . qualify as 'highly compensated employees.'" Ante, at 11. That may be true, but there are surely numerous "highly compensated employees" who would both be "employees" under the usual, common-law meaning of that term (and hence "employees" under ERISA, see Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992)), and would also not be considered "working owners" as the Court uses the term. It is entirely possible, then, that Congress was merely attempting to exclude these individuals from §1106, rather than assuming that all "working owners" were "employees." Hence, the existence of this exception tells us nothing about whether Congress "intended working owners" to be "employees" under ERISA. Ante, at 8. Since the text is inconclusive, we must turn to the common-law understanding of the term "employee." Darden, supra, at 322-323. On remand, then, I would direct the Court of Appeals to address whether the common-law understanding of the term "employee," as used in ERISA, includes Dr. Yates. I would be surprised if it did not, see Inre Baker, 114 F.3d 636, 639 (CA7 1997) (corporation's separate legal existence from shareholder must be respected), Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 448-449 (CA4 1993) (same), but this is a matter best resolved, in the first instance, by the court below. FOOTNOTESFootnote 1Subsection 547(b) provides: "Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property-- "(1) to or for the benefit of a creditor; "(2) for or on account of an antecedent debt owed by the debtor before such transfer was made; "(3) made while the debtor was insolvent; "(4) made-- "(A) on or within 90 days before the date of the filing of the petition; or "(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and "(5) that enables such creditor to receive more than such creditor would receive if-- "(A) the case were a case under chapter 7 of this title; "(B) the transfer had not been made; and "(C) such creditor received payment of such debt to the extent provided by the provisions of this title." This provision permits the bankruptcy trustee to avoid certain transfers of "property that would have been part of the [bankruptcy] estate had it not been transferred before the commencement of bankruptcy proceedings." Begier v. IRS, 496 U.S. 53, 58 (1990). Footnote 2The Courts of Appeals are also divided on whether working owners may qualify as "beneficiaries" of ERISA-sheltered employee benefit plans. Compare 287 F.3d 521, 525 (CA6 2002) (case below) (sole shareholder is not a beneficiary of an ERISA-qualified plan); Agrawal, 205 F.3d, at 302 (sole shareholder is not a beneficiary), with Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292, 1302 (CA11 2001) (sole shareholder is a beneficiary); Wolk v. UNUM Life Ins. of Am., 186 F.3d 352, 356 (CA3 1999) (partner is a beneficiary); Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 208 (CA8 1996) (controlling shareholder is a beneficiary); Robinson v. Linomaz, 58 F.3d 365, 370 (CA8 1995) (co-owners are beneficiaries); Peterson v. American Life & Health Ins. Co., 48 F.3d 404, 409 (CA9 1995) (partner is a beneficiary). The United States, as amicus curiae, urges that treating working owners as "beneficiaries" of an ERISA-qualified plan is not an acceptable solution. Brief for United States as Amicus Curiae 9 (The beneficiary approach "has no logical stopping point, because it would allow a plan to cover anyone it chooses, including independent contractors excluded by [Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992)]" and "fails to resolve participation questions for pension plans which, unlike welfare plans, tie coverage directly to service as an employee."); id., at 24-25. This issue is not presented here, and we do not resolve it. Footnote 3Cf. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440(2003) (finding textual clues absent, Court looked to common law for guidance). Footnote 4A particular employee benefit plan may be covered by one title of ERISA, but not by another. See Brief for United States as Amicus Curiae 18, n.9. Footnote 5We do not suggest that each provision described supra, at 9-12, in isolation, would compel the Court's reading. But cf. post, at 1-2 (Thomas, J., concurring in judgment). In combination, however, the provisions supply "specific guidance" adequate to obviate any need to expound on common law. See Darden, 503 U.S., at 323. Footnote 6Courts agree that if a benefit plan covers only working owners, it is not covered by Title I. See, e.g., Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102, 1105 (CA11 1999) (sole shareholder is not a participant where disability plan covered only him); Inre Watson, 161 F.3d 593, 597 (CA9 1998) (sole shareholder is not a participant where retirement plan covered only him); SEC v. Johnston, 143 F.3d 260, 262-263 (CA6 1998) (owner is not a participant where pension plan covered only owner and "perhaps" his wife); Schwartz v. Gordon, 761 F.2d 864, 867 (CA2 1985) (self-employed individual is not a participant where he is the only contributor to a Keogh plan). Such a plan, however, could qualify for favorable tax treatment. See Brief for United States as Amicus Curiae 18, n.9. Footnote 7Section 2510.3-3's preamble supports this interpretation. The preamble states, in relevant part: "According to the comments [concerning proposed §2510.3-3], a definition of 'employee' excluding self-employed individuals might raise problems under section 404(a)(1) with respect to disbursements to self-employed individuals from 'Keogh' or 'H.R. 10' plans covering both self-employed individuals and 'common law' employees. Therefore, the definition of 'employee' formerly appearing in proposed §2510.3-6 has been inserted into §2510.3-3 and restricted in scope to that section." 40 Fed. Reg. 34528 (1975) (emphasis added). FOOTNOTESFootnote **The Court does not clearly define who exactly makes up this class of "working owners," even though members of this class are now considered categorically to fall under ERISA's definition of "employee."

liberal

other

economic_activity

1982-161-01

United States Supreme Court BARCLAY v. FLORIDA(1983) No. 81-6908 Argued: March 30, 1983Decided: July 6, 1983 Petitioner and other men, whose apparent purpose was to indiscriminately kill white persons and to start a racial war, killed a white hitchhiker in Florida. Petitioner was convicted of first-degree murder by a jury in a Florida state court, and as required by the Florida death penalty statute a separate sentencing hearing was held before the same jury, which rendered an advisory sentence recommending life imprisonment. However, the trial judge, after receiving a presentence report, sentenced petitioner to death. As required by the Florida statute, the judge made written findings of fact, including findings of the statutory aggravating circumstances that petitioner had knowingly created a great risk of death to many persons, had committed the murder while engaged in a kidnaping, had endeavored to disrupt governmental functions and law enforcement, and had been especially heinous, atrocious, and cruel. The judge also found that in addition to the statutory aggravating circumstances the petitioner's record constituted an aggravating circumstance, and ultimately concluded that there were sufficient aggravating circumstances to justify the death sentence. The judge did not find any mitigating circumstances, noting particularly that petitioner had an extensive criminal record and thus did not qualify for the statutory mitigating circumstance of having no significant history of prior criminal activity. On automatic appeal, the Florida Supreme Court affirmed, approving the trial judge's findings and concluding that the trial judge properly rejected the jury's recommendation of life imprisonment. However, the Florida Supreme Court later vacated its judgment and remanded to the trial court to give petitioner a full opportunity to rebut the information in the presentence report. After a resentencing hearing, the trial court reaffirmed the death sentence on the basis of findings that were essentially identical to its original findings, and the Florida Supreme Court again affirmed. Held: The judgment is affirmed. 411 So.2d 1310, affirmed. JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded: 1. Although the State concedes that under Florida law the trial judge improperly found that petitioner's criminal record was an "aggravating circumstance" because that factor was not among those established as [463 U.S. 939, 940] "aggravating circumstances" by the Florida statute, there is no merit to petitioner's challenge concerning the findings on other aggravating circumstances. Pp. 946-951. (a) The findings as to the presence of the statutory aggravating circumstances were made by the trial court and approved by the Florida Supreme Court under Florida law, and thus this Court's review is limited to the question whether the findings were so unprincipled or arbitrary as to violate the Federal Constitution. It was not irrational or arbitrary to apply the statutory aggravating circumstances to the facts of this case. Pp. 946-947. (b) Nor must the sentence be vacated on the ground that the trial judge, in explaining his sentencing decision, discussed the racial motive for the murder and compared it with his own Army experiences in World War II, when he saw Nazi concentration camps and their victims. The Constitution does not require that the sentencing process be transformed into a rigid and mechanical parsing of statutory aggravating factors. It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing. Pp. 948-951. 2. Although under Florida law the trial court improperly considered the petitioner's criminal record as an "aggravating circumstance," imposition of the death penalty on petitioner does not violate the Federal Constitution. Pp. 951-958. (a) The Florida statute requires the sentencer to find at least one valid statutory aggravating circumstance before the death penalty may even be considered, and permits the trial court to admit any evidence that may be relevant to the proper sentence. Florida law requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit nonstatutory aggravating circumstances to enter into the weighing process. However, when the trial court erroneously considers improper aggravating factors, the Florida Supreme Court applies a harmless-error analysis if the trial court properly found that there were no mitigating circumstances. Pp. 952-956. (b) Nothing in the Federal Constitution prohibited the trial court from considering petitioner's criminal record. And under Florida law, the evidence was properly introduced to prove that the mitigating circumstance of absence of a criminal record did not exist. P. 956. (c) There is no constitutional defect in a death sentence based on both statutory and nonstatutory aggravating circumstances, and mere errors of state law are not the concern of this Court unless they rise to the level of a denial of constitutional rights. There is no reason why the Florida Supreme Court, in applying its harmless-error analysis, cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not [463 U.S. 939, 941] possibly affect the balance. What is important is an individualized determination on the basis of the character of the individual and the circumstances of the crime. Pp. 956-958. JUSTICE STEVENS, joined by JUSTICE POWELL, stressed the importance of procedural protections that are intended to insure that the death penalty will be imposed in a consistent, rational manner. He concluded that Florida's sentencing procedure is constitutionally adequate; that the Florida rule that statutory aggravating factors must be exclusive affords greater protection than the Federal Constitution requires; that although a death sentence may not rest solely on a nonstatutory aggravating circumstance, the Constitution requires no more than one valid statutory aggravating circumstance, at least as long as none of the invalid aggravating circumstances is supported by erroneous or misleading information; that there is no merit in petitioner's contention that none of the statutory aggravating circumstances found by the trial court may be sustained under Florida law and the Federal Constitution; that the trial court did not commit reversible error of constitutional magnitude by considering nonstatutory aggravating factors; and that the Florida Supreme Court has fulfilled its constitutionally mandated responsibility of performing meaningful appellate review of death sentences. Pp. 960-974. REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C. J., and WHITE and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which POWELL, J., joined, post, p. 958. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 974. BLACKMUN, J., filed a dissenting opinion, post, p. 991. James M. Nabrit III argued the cause for petitioner. With him on the brief were Kenneth Vickers, Jack Greenberg, Joel Berger, John Charles Boger, Deborah Fins, James S. Liebman, and Anthony G. Amsterdam. Wallace E. Allbritton, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Jim Smith, Attorney General. JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR joined. The central question in this case is whether Florida may constitutionally impose the death penalty on petitioner [463 U.S. 939, 942] Elwood Barclay when one of the "aggravating circumstances" relied upon by the trial judge to support the sentence was not among those established by the Florida death penalty statute. The facts, as found by the sentencing judge and quoted by the Florida Supreme Court, are as follows: "[T]he four defendants were part of a group that termed itself the `BLACK LIBERATION ARMY' (BLA), and whose apparent sole purpose was to indiscriminately kill white persons and to start a revolution and a racial war. "The testimony showed that on the evening of June 17, 1974, Dougan, Barclay, Crittendon, Evans and William Hearn set out in a car armed with a twenty two caliber pistol and a knife with the intent to kill . . . any white person that they came upon under such advantageous circumstances that they could murder him, her or them. "That as they drove around the City of Jacksonville they made several stops and observed white persons as possible victims, but decided that the circumstances were not advantageous and that they might be observed or thwarted . . . . At one stop, Dougan wrote out a note - which was to be placed on the body of the victim ultimately chosen for death. "Eventually the five men headed for Jacksonville Beach where they picked up a hitch hiker, eighteen year old, Stephen Anthony Orlando. Against his will and over his protest they drove him to an isolated trash dump, ordered him out of the car, threw him down and Barclay repeatedly stabbed him with a knife. Dougan then put his foot on Orlando's head and shot him twice - once in the cheek and once in the ear - killing him instantly. "The evidence showed that none of the defendants knew or had ever seen Orlando before they murdered [463 U.S. 939, 943] him. The note, which Dougan had previously written, was stuck to Orlando's body by the knife of the murderers. The note read: "`Warning to the oppressive state. No longer will your atrocities and brutalizing of black people be unpunished. The black man is no longer asleep. The revolution has begun and the oppressed will be victorious. The revolution will end when we are free. The Black Revolutionary Army. All power to the people.' . . . . . . . . "Subsequent to the murder the defendants Barclay and Dougan . . . made a number of tape recordings concerning the murder. These recordings were mailed to the [victim's mother] and to radio and television stations. All of the tapes contained much the same in content and intent. [The court then reproduced typical excerpts from transcripts of the tapes, which included the following:] . . . . . "`The reason Stephen was only shot twice in the head was because we had a jive pistol. It only shot twice and then it jammed; you can tell it must have been made in America because it wasn't worth a shit. He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes. . . .' "`He died in style, though, begging, begging and pleading for mercy, just as black people did when you took them and hung them to the trees, burned their houses down, threw bombs in the same church that practices the same religion that you forced on these people, my people. "`We are everywhere; you cannot hide from us. You have told your people to get off the streets and to stay [463 U.S. 939, 944] home. That will not help, for one night they will come home and we will be there waiting. It has been said, look for us and you cannot see us; listen for us and you cannot hear us; feel for us and you cannot touch us. These are the characteristics of an urban guerilla.'" Barclay v. State, 343 So.2d 1266, 1267-1269 (1977). Barclay and Dougan were convicted by a jury of first-degree murder. 1 As required by the Florida death penalty statute, Fla. Stat. 921.141(1) (1977), a separate sentencing hearing was held before the same jury. The jury rendered advisory sentences under 921.141(2), recommending that Dougan be sentenced to death and, by a 7 to 5 vote, that Barclay be sentenced to life imprisonment. The trial judge, after receiving a presentence report, decided to sentence both men to death. He made written findings of fact concerning aggravating and mitigating circumstances as required by 921.141(3). App. 1-53. The trial judge found that several of the aggravating circumstances set out in the statute were present. He found that Barclay had knowingly created a great risk of death to many persons, 921.141(5)(c), had committed the murder while engaged in a kidnaping, 921.141(5)(d), had endeavored to disrupt governmental functions and law enforcement, 921.141(5)(g), and had been especially heinous, atrocious, or cruel. 921.141(5)(h). See 343 So.2d, at 1271. The trial judge did not find any mitigating circumstances. He noted in particular that Barclay had an extensive criminal record, and therefore did not qualify for the mitigating circumstance of having no significant history of prior criminal activity. 921.141(6)(a). He found that Barclay's record constituted an aggravating, rather than a mitigating, circumstance. 343 So.2d, at 1270, and n. 2. The trial judge also [463 U.S. 939, 945] noted that the aggravating circumstance of 921.141(5)(a) ("The capital felony was committed by a convict under sentence of imprisonment") was not present, but restated Barclay's criminal record and again found it to be an aggravating circumstance. App. 33-34. He made a similar finding as to the aggravating circumstance of 921.141(5)(b) ("The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person"). Barclay had been convicted of breaking and entering with intent to commit the felony of grand larceny, but the trial judge did not know whether it involved the use or threat of violence. He pointed out that crimes such as this often involve the use or threat of violence, and stated that "there are more aggravating than mitigating circumstances." Id., at 34-35. The trial judge concluded that "[T]HERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO BOTH DEFENDANTS." Id., at 48. He therefore rejected part of the jury's recommendation, and sentenced Barclay as well as Dougan to death. On the automatic appeal provided by Fla. Stat. 921.141 (4) (1977), the Florida Supreme Court affirmed. It approved the findings of the trial judge and his decision to reject the jury's recommendation that Barclay be sentenced to life imprisonment. It concluded that "[t]his is a case . . . where the jury did not act reasonably in the imposition of sentence, and the trial judge properly rejected one of their recommendations." 343 So.2d, at 1271 (footnotes omitted). This Court denied a petition for a writ of certiorari. 439 U.S. 892 (1978). However, the Florida Supreme Court later vacated its judgment, sua sponte, in light of our decision in Gardner v. Florida, 430 U.S. 349 (1977), and remanded to the trial court to give Barclay a full opportunity to rebut the information in the presentence report that was prepared for the trial judge. The trial court held a resentencing hearing, and reaffirmed the death sentence on the basis of [463 U.S. 939, 946] findings that are essentially identical to its original findings. App. 82-141. On appeal, the Florida Supreme Court again affirmed, holding that Barclay had not been denied any rights under Gardner. 411 So.2d 1310 (1981). Rehearing was denied by an equally divided court. Ibid. I Barclay has raised numerous objection to the trial judge's findings. The Florida courts declined to reconsider these arguments in the resentencing proceedings. The resentencing hearing was limited to ensuring that Barclay received all the rights to which he was entitled under Gardner. The Florida Supreme Court stated that it had "previously analyzed," 411 So.2d, at 1311, Barclay's arguments, which were directed "against the findings previously reviewed here and affirmed," and declined to "abrogate the `law of the case'" on these questions. Id., at 1310. Since the Florida Supreme Court held that it had considered Barclay's claims in his first appeal, and simply refused to reconsider its previous decision in the second appeal, those claims are properly before us. Reece v. Georgia, 350 U.S. 85, 86 -87 (1955). A Barclay argues that the trial judge improperly found that his criminal record was an "aggravating circumstance." The State concedes that this is correct: Florida law plainly provides that a defendant's prior criminal record is not a proper "aggravating circumstance." Mikenas v. State, 367 So.2d 606, 610 (Fla. 1978). B Barclay also argues that the trial judge improperly found the "under sentence of imprisonment" and "previously been convicted of a [violent] felony" aggravating circumstances. The Florida Supreme Court, however, construed the trial judge's opinion as finding that these aggravating circumstances "essentially had no relevance here." 343 So.2d, at [463 U.S. 939, 947] 1271 (footnote omitted). We see no reason to disturb that conclusion. The trial judge plainly stated that Barclay "was not under sentence of imprisonment." App. 120. The trial judge also stated in the same paragraph that Barclay's criminal record "is an aggravating circumstance," id., at 121, but this is simply a repetition of the error noted above. Barclay also challenges the findings on several other aggravating circumstances. He claims that the trial court improperly found that he caused a great risk of death to many people, 2 that the murder was committed during a kidnaping, that the murder was committed to disrupt the lawful exercise of a governmental function or the enforcement of the laws, 3 and that the murder was especially heinous, atrocious, or cruel. 4 All of these findings were made by the trial court and approved by the Florida Supreme Court under Florida law. Our review of these findings is limited to the question whether they are so unprincipled or arbitrary as to somehow violate the United States Constitution. We think they were not. It was not irrational or arbitrary to apply these aggravating circumstances to the facts of this case. 5 [463 U.S. 939, 948] C Barclay also contends that his sentence must be vacated because the trial judge, in explaining his sentencing decision, discussed the racial motive for the murder and compared it with his own experiences in the Army in World War II, when he saw Nazi concentration camps and their victims. 6 Barclay [463 U.S. 939, 949] claims that the trial judge improperly added a nonstatutory aggravating circumstance of racial hatred and should not have considered his own experiences. We reject this argument. The United States Constitution does not prohibit a trial judge from taking into account the elements of racial hatred in this murder. The judge in this case found Barclay's desire to start a race war relevant to several statutory aggravating factors. 7 The judge's discussion is neither irrational nor arbitrary. In particular, the comparison between this case and the Nazi concentration camps does not offend the United States Constitution. Such a comparison is not an inappropriate way of weighing the "especially heinous, atrocious, or cruel" statutory aggravating circumstance in an attempt to determine whether it warrants imposition of the death penalty. [463 U.S. 939, 950] Any sentencing decision calls for the exercise of judgment. It is neither possible nor desirable for a person to whom the State entrusts an important judgment to decide in a vacuum, as if he had no experiences. The thrust of our decisions on capital punishment has been that "`discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.'" Zant v. Stephens, 462 U.S. 862, 874 (1983), quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). This very day we said in another capital case: "In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar `central issue' from which the jury's attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent's jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment." California v. Ramos, post, at 1008. We have never suggested that the United States Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors. But to attempt to separate the sentencer's decision from his experiences would inevitably do precisely that. It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing. We expect that sentencers will exercise their discretion in their own way and to the best of their ability. As long as that discretion is guided in a constitutionally adequate way, see Proffitt v. Florida, 428 U.S. 242 (1976), and as long as the decision is not so wholly arbitrary as to [463 U.S. 939, 951] offend the Constitution, the Eighth Amendment cannot and should not demand more. II In this case the state courts have considered an aggravating factor that is not a proper aggravating circumstance under state law. 8 Barclay argues that a system that permits this sort of consideration does not meet the standards established by this Court under the Eighth and Fourteenth Amendments for imposition of the death penalty. 9 As in Zant, supra, at 884, the question whether Barclay's sentence must be vacated depends on the function of the finding of aggravating circumstances under Florida law and on the reason why this aggravating circumstance is invalid. 10 [463 U.S. 939, 952] A The Florida statute at issue in this case was upheld in Proffitt v. Florida, supra. The opinion of Justices Stewart, POWELL, and STEVENS described the mechanics of the statute as follows: "[I]f a defendant is found guilty of a capital offense, a separate evidentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument . . . . "At the conclusion of the hearing the jury is directed to consider `[w]hether sufficient mitigating circumstances exist . . . which outweigh the aggravating circumstances found to exist; and . . . [b]ased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.' 921.141(2)(b) and (c) (Supp. 1976-1977). The jury's verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge. The Florida Supreme Court has stated, however, that `[i]n order to sustain a sentence of death following a jury recommendation of [463 U.S. 939, 953] life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.' Tedder v. State, 322 So.2d 908, 910 (1975). . . . "The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, `it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory] 11 mitigating circumstances . . . to outweigh the aggravating circumstances.' 921.141(3) (Supp. 1976-1977). "The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. 921.141(4) (Supp. 1976-1977). The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like [463 U.S. 939, 954] its Georgia counterpart, considers its function to be to `[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.' State v. Dixon, 283 So.2d 1, 10 (1973)." 428 U.S., at 248 -251 (footnotes omitted) (emphasis supplied). Thus the Florida statute, like the Georgia statute at issue in Zant v. Stephens, 462 U.S. 862 (1983), requires the sentencer to find at least one valid statutory aggravating circumstance before the death penalty may even be considered, 12 and permits the trial court to admit any evidence that may be relevant to the proper sentence. Unlike the Georgia statute, however, Florida law requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit nonstatutory aggravating circumstances to enter into this weighing process. E. g., Mikenas v. State, 367 So.2d 606 (Fla. 1978). The statute does not establish any special standard for this weighing process. Although the Florida statute did not change significantly between Proffitt and the decision below, 13 the Florida Supreme Court has developed a body of case law in this area. One question that has arisen is whether defendants must be [463 U.S. 939, 955] resentenced when trial courts erroneously consider improper aggravating factors. If the trial court found that some mitigating circumstances exist, the case will generally be remanded for resentencing. Elledge v. State, 346 So.2d 998, 1002-1003 (Fla. 1977). See, e. g., Moody v. State, 418 So.2d 989, 995 (Fla. 1982); Riley v. State, 366 So.2d 19, 22 (Fla. 1978). If the trial court properly found that there are no mitigating circumstances, the Florida Supreme Court applies a harmless-error analysis. Elledge, supra, at 1002-1003. See, e. g., White v. State, 403 So.2d 331 (Fla. 1981); Sireci v. State, 399 So.2d 964, 971 (Fla. 1981). In such a case, "a reversal of the death sentence would not necessarily be required," Ferguson v. State, 417 So.2d 639, 646 (Fla. 1982), because the error might be harmless. The Florida Supreme Court has not always found that consideration of improper aggravating factors is harmless, even when no mitigating circumstances exist. In Lewis v. State, 398 So.2d 432 (Fla. 1981), for example, the defendant shot the victim once in the head through his bedroom window, killing him instantly. The jury recommended life imprisonment, but the trial judge sentenced Lewis to death, finding four aggravating circumstances and no mitigating circumstances. The Florida Supreme Court found that the evidence did not support three of the aggravating circumstances. It did find that the "under sentence of imprisonment" aggravating circumstance was properly applied because Lewis was on parole from a prison sentence when he committed the crime. On these facts, and with only this one relatively weak aggravating circumstances left standing, the Florida Supreme Court did not find harmless error, but rather remanded for resentencing. The Florida Supreme Court has placed another check on the harmless-error analysis permitted by Elledge. When the jury has recommended life imprisonment, the trial judge may not impose a death sentence unless "the facts suggesting a sentence of death [are] so clear and convincing that virtually [463 U.S. 939, 956] no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (1975). In Williams v. State, 386 So.2d 538, 543 (1980), and Dobbert v. State, 375 So.2d 1069, 1071 (1979), the Florida Supreme Court reversed the trial judges' findings of several aggravating circumstances. In each case at least one valid aggravating circumstance remained, and there were no mitigating circumstances. In each case, however, the Florida Supreme Court concluded that in the absence of the improperly found aggravating circumstances the Tedder test could not be met. Therefore it reduced the sentences to life imprisonment. B The trial judge's consideration of Barclay's criminal record as an aggravating circumstance was improper as a matter of state law: that record did not fall within the definition of any statutory aggravating circumstance, and Florida law prohibits consideration of nonstatutory aggravating circumstances. In this case, as in Zant v. Stephens, 462 U.S., at 887 -888, nothing in the United States Constitution prohibited the trial court from considering Barclay's criminal record. The trial judge did not consider any constitutionally protected behavior to be an aggravating circumstance. See id., at 884. And, again as in Zant, nothing in the Eighth Amendment or in Florida law prohibits the admission of the evidence of Barclay's criminal record. On the contrary, this evidence was properly introduced to prove that the mitigating circumstance of absence of a criminal record did not exist. This statutory aggravating circumstance "plausibly described aspects of the defendant's background that were properly before the [trial judge] and whose accuracy was unchallenged." Id., at 887. C The crux of the issue, then, is whether the trial judge's consideration of this improper aggravating circumstance so infects the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court to let the sentence stand. It is clear that the [463 U.S. 939, 957] Court in Proffitt did not accept this notion. Indeed, the joint opinion announcing the judgment listed the four aggravating circumstances that had been found against Proffitt, and one of them - "the petitioner has the propensity to commit murder" - was not and is not a statutory aggravating circumstance in Florida. 428 U.S., at 246 (opinion of Stewart, POWELL, and STEVENS, JJ.). That opinion did state: "The petitioner notes further that Florida's sentencing system fails to challenge the discretion of the jury or judge because it allows for consideration of nonstatutory aggravating factors. In the only case to approve such a practice, Sawyer v. State, 313 So.2d 680 (1975), the Florida court recast the trial court's six nonstatutory aggravating factors into four aggravating circumstances - two of them statutory. As noted earlier, it is unclear that the Florida court would ever approve a death sentence based entirely on nonstatutory aggravating circumstances. See n. 8, supra." Id., at 256-257, n. 14. While this statement may properly be read to question the propriety of a sentence based entirely on nonstatutory aggravating factors, it is clear that the opinion saw no constitutional defect in a sentence based on both statutory and nonstatutory aggravating circumstances. See also California v. Ramos, post, at 1007-1009, quoting Zant, supra, at 878. Barclay's brief is interlarded with rhetorical references to "[l]awless findings of statutory aggravating circumstances," Brief for Petitioner 33, "protective pronouncements which . . . seem to be turned on and off from case to case without notice or explanation," id., at 93, and others in a similar vein. These varied assertions seem to suggest that the Florida Supreme Court failed to properly apply its own cases in upholding petitioner's death sentence. The obvious answer to this question, as indicated in the previous discussion, is that mere errors of state law are not the concern of this Court, Gryger v. Burke, 334 U.S. 728, 731 (1948), unless they rise [463 U.S. 939, 958] for some other reason to the level of a denial of rights protected by the United States Constitution. In any event, we do not accept Barclay's premise. Cases such as Lewis, supra, Williams, supra, and Dobbert, supra, indicate that the Florida Supreme Court does not apply its harmless error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. See n. 9, supra. "What is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant, supra, at 879 (emphasis in original). In this case, as in Zant, supra, at 890, our decision is buttressed by the Florida Supreme Court's practice of reviewing each death sentence to compare it with other Florida capital cases and to determine whether "the punishment is too great." State v. Dixon, 283 So.2d 1, 10 (1973). See, e. g., Blair v. State, 406 So.2d 1103, 1109 (Fla. 1981). It is further buttressed by the rule prohibiting the trial judge from overriding a jury recommendation of life imprisonment unless "virtually no reasonable person could differ." Tedder v. State, supra, at 910. The judgment of the Supreme Court of Florida is Affirmed. Footnotes [Footnote 1 Evans and Crittendon, who did not actually kill Orlando, were convicted of second-degree murder and sentenced to 199 years in prison. Hearn pleaded guilty to second-degree murder and testified for the prosecution. [Footnote 2 The Florida Supreme Court stated: "The trial judge noted five aborted attempts to select a victim from the streets of Jacksonville before Stephen Orlando was chosen, plus the taped threat made to white Jacksonville citizens that a race war had begun and none would be safe." 343 So.2d, at 1271, n. 4. [Footnote 3 The Florida Supreme Court stated: "The basis for this finding was the judge's observation that the notion of a race war essentially threatened the foundations of American society." Id., at 1271, n. 5. [Footnote 4 The Florida Supreme Court noted that the tape recordings petitioner and Dougan made "explained how Stephen Orlando had begged for his life while being beaten and stabbed before Dougan `executed' him with two pistol shots in the head." Id., at 1271, n. 6. [Footnote 5 The differences between this case and Godfrey v. Georgia, 446 U.S. 420 (1980), are readily apparent. Godfrey killed his wife and his mother-in-law with a single shotgun blast each. Each died instantly. There was no torture or aggravated battery. The state court nonetheless found that [463 U.S. 939, 948] the murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code 27-2534.1(b)(7) (1978). It found no other aggravating circumstances. We concluded that, on the facts of the case, such a finding could only have resulted from a "standardless and unchannelled" decision based on "the uncontrolled discretion of a basically uninstructed jury." 446 U.S., at 429 . [Footnote 6 The concluding sections of the trial judge's opinion read as follows: "CONCLUSION OF THE COURT "THERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO THE DEFENDANT ELWOOD CLARK BARCLAY. "AUTHORITY FOR SENTENCE "That under Florida Law the Judge sentences a defendant, convicted of Murder in the First Degree, either to death or life imprisonment. This is an awesome burden to be placed upon the Judge - but in the landmark Florida case of State v. Dixon, 283 So.2d 1, the Florida Supreme Court said that when such discretion can `be shown to be reasonable and controlled, rather than capricious and discriminatory,' then it meets the test of Furman v. Georgia, 408 U.S. 238 . "COMMENTS OF JUDGE "My twenty-eight years of legal experience have been almost exclusively in the field of Criminal Law. I have been a defense attorney in criminal cases, an Advisor to the Public Defender's Office, a prosecutor for eight and one-half years and a Criminal Court and Circuit Court Judge - Felony Division - for almost ten years. During these twenty-eight years I have defended, prosecuted and held trial in almost every type of serious crime. "Because of this extensive experience, I believe I have come to know and understand when, or when not, a crime is heinous, atrocious and cruel and deserving of the maximum possible sentence. "My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. I, like so many American Combat Infantry Soldiers, walked the battlefields of Europe and saw the thousands of [463 U.S. 939, 949] dead American and German soldiers and I witnessed the concentration camps where innocent civilians and children were murdered in a war of racial and religious extermination. "To attempt to initate such a race war in this country is too horrible to contemplate for both our black and white citizens. Such an attempt must be dealt with by just and swift legal process and when justified by a Jury verdict of guilty - then to terminate and remove permanently from society those who would choose to initiate this diabolical course. "HAD THE DEFENDANT BEEN EXPOSED TO THE CARNAGE OF THE BATTLEFIELDS AND THE HORRORS OF THE CONCENTRATION CAMPS INSTEAD OF MOVIES, TELEVISION PROGRAMS AND REVOLUTIONARY TRACTS GLORIFYING VIOLENCE AND RACIAL STRIFE - THEN PERHAPS HIS THOUGHTS AND ACTIONS WOULD HAVE TAKEN A LESS VIOLENT COURSE. "Having set forth my personal experiences above, it is understandable that I am not easily shocked or moved by tragedy - but this present murder and call for racial war is especially shocking and meets every definition of heinous, atrocious and cruel. The perpetrator thereby forfeits further right to life - for certainly his life is no more sacred than that of the innocent eighteen year old victim, Stephen Anthony Orlando." App. 135-139. [Footnote 7 The trial judge discussed this point in the course of finding the "great risk of death to many persons," "disrupt or hinder the lawful exercise of [463 U.S. 939, 950] any governmental function or the enforcement of the laws," and "especially heinous, atrocious, or cruel" statutory aggravating circumstances. [Footnote 8 Barclay does not, and could not reasonably, contend that the United State Constitution forbids Florida to make the defendant's criminal record an aggravating circumstance. Thus, this case is distinguishable from Zant v. Stephens, 462 U.S. 862 (1983), where one of the three aggravating circumstances found in Georgia state court was found to be invalid under the Federal Constitution. Of course, a "`mere error of state law' is not a denial of due process." Engle v. Isaac, 456 U.S. 107, 121 , n. 21 (1982), quoting Gryger v. Burke, 334 U.S. 728, 731 (1948). Thus we need not apply the type of federal harmless-error analysis that was necessary in Zant, supra, at 884-889. [Footnote 9 Barclay does not contend that the Florida Supreme Court erred in applying the "law of the case" doctrine to this case. His claim seems to be, rather, that the errors in this case were so egregious and the flaws in the Florida statute are so fundamental that his sentence cannot constitutionally be permitted to stand. The Florida Supreme Court did not address Barclay's arguments in precisely the terms he now uses. But, so far as we can tell from the record before us, Barclay did not make his arguments in the same terms on his first appeal. We know from the Florida Supreme Court's opinion in the second appeal that it regarded these questions as having been decided in its first opinion. See supra, at 946. It appears, contrary to JUSTICE MARSHALL'S assertion, post, at 989, that any fault, if fault there be, for failure to elaborate more fully on the relationship of this case to other Florida cases may well lie at the door of petitioner, and not the Supreme Court of Florida. [Footnote 10 We have, in some similar circumstances, certified a question to the State Supreme Court in order to ascertain as precisely as possible the state-law basis for a sentence. See Zant v. Stephens, 456 U.S. 411, 416 -417 [463 U.S. 939, 952] (1982). But that procedure would be inappropriate here. Unlike Zant, which was a habeas case that originated in the federal court system, this case has already been twice reviewed by the Supreme Court of Florida. On petitioner's second appeal the Supreme Court of Florida declined to address the questions he presents to this Court. Under these circumstances, certification to the Supreme Court of Florida would be little more than a pointed suggestion that it retreat from its "law of the case" position. While we may reverse or modify a state-court judgment which we find erroneously disposes of a federal question, we will not certify a question in these circumstances. [Footnote 11 In fact, even before this Court decided Lockett v. Ohio, 438 U.S. 586 (1978) (evidence at sentencing phase cannot be limited to statutory mitigating circumstances), the Florida Supreme Court had construed this statute to permit consideration of any mitigating circumstances. See Songer v. State, 365 So.2d 696, 700 (Fla. 1978) (citing cases). The opinion of Stewart, POWELL, and STEVENS, JJ. explicitly recognized that 921.141(5) does not include language limiting mitigating circumstances to those listed in the statute, but 921.141(6) provides that "aggravating factors shall be limited to" the statutory aggravating circumstances. 428 U.S., at 250 , n. 8. It is not clear from the opinion itself why the opinion inserted the word "statutory" in brackets when quoting 921.141(b)(3). [Footnote 12 The language of the statute, which provides that the sentencer must determine whether "sufficient aggravating circumstances exist," 921.141(3)(a), indicates that any single statutory aggravating circumstance may not be adequate to meet this standard if, in the circumstances of a particular case, it is not sufficiently weighty to justify the death penalty. We have not found a Florida case in which a defendant claimed that a single aggravating circumstance was not "sufficient" within the meaning of 921.141(3)(a). [Footnote 13 The statute was amended in 1979, but the parties agree that the amended statute was not applied to Barclay. JUSTICE STEVENS, with whom JUSTICE POWELL joins, concurring in the judgment. Death as a punishment is unique in its severity and irrevocability. Since Furman v. Georgia, 408 U.S. 238 (1972), this Court's decisions have made clear that States may impose this ultimate sentence only if they follow procedures that are designed to assure reliability in sentencing [463 U.S. 939, 959] determinations. Gregg v. Georgia, 428 U.S. 153, 189 , 196-206 (1976); Proffitt v. Florida, 428 U.S. 242, 247 -253 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Gardner v. Florida, 430 U.S. 349 (1977); Roberts v. Louisiana, 431 U.S. 633 (1977); Lockett v. Ohio, 438 U.S. 586 (1978); Bell v. Ohio, 438 U.S. 637 (1978); Green v. Georgia, 442 U.S. 95 (1979); Godfrey v. Georgia, 446 U.S. 420 (1980); Eddings v. Oklahoma, 455 U.S. 104 (1982). We have "attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused." Eddings, supra, at 111. Again this Term we have reaffirmed our adherence to these principles. Zant v. Stephens, 462 U.S. 862, 874 -880 (1983). Our decisions, taken as a whole, have given substantial content to the guarantees embodied in the Eighth and Fourteenth Amendments. Particular features of state sentencing schemes may be sufficiently inadequate, unreliable, or unfair that they violate the United States Constitution. Particular death penalty determinations may demonstrate that a State's sentencing procedure is constitutionally inadequate in one or more respects. See, e. g., Godfrey v. Georgia, supra. But this is not such a case. After giving careful consideration to this case and others decided by the Supreme Court of Florida, I am convinced that Florida has retained the procedural safeguards that supported our decision to uphold the scheme in Proffitt v. Florida, supra, and that the death sentence imposed upon Elwood Barclay is consistent with federal constitutional requirements. My conclusions rest on my understanding of certain aspects of Florida's capital sentencing procedures that are not adequately explained in the plurality opinion. Although I agree with the plurality's conclusion, and with much of what is said in its opinion, I think it important to write separately. The plurality acknowledges, of course, the constitutional guarantees that have been emphasized in [463 U.S. 939, 960] our cases since Gregg. But in some of its language the plurality speaks with unnecessary, and somewhat inappropriate, breadth. The Court has never thought it sufficient in a capital case merely to ask whether the state court has been "so unprincipled or arbitrary as to somehow violate the United States Constitution." Ante, at 947. Nor does a majority of the Court today adopt that standard. A constant theme of our cases - from Gregg and Proffitt through Godfrey, Eddings, and most recently Zant - has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner. As stated in Zant, we have stressed the necessity of "genuinely narrow[ing] the class of persons eligible for the death penalty," and of assuring consistently applied appellate review. 462 U.S., at 877 , 890. Accordingly, my primary purpose is to reemphasize these limiting factors in light of the decisions of the Supreme Court of Florida. I Florida has adopted a "trifurcated" procedure for identifying the persons convicted of a capital felony who shall be sentenced to death. See Tedder v. State, 322 So.2d 908, 910 (1975). Procedurally it consists of a determination of guilt or innocence by the jury, an advisory sentence by the jury, and an actual sentence imposed by the trial judge. Although the court has the authority to reject a jury's recommendation of either life imprisonment or death, the Florida Supreme Court has repeatedly stated that it will scrutinize with special care any death sentence that is imposed after a jury has recommended a lesser penalty. 1 [463 U.S. 939, 961] Analytically the trial judge must make three separate determinations in order to impose the death sentence: (1) that at least one statutory aggravating circumstance has been proved beyond a reasonable doubt; (2) that the existing statutory aggravating circumstances are not outweighed by statutory mitigating circumstances; 2 and (3) that death is the appropriate penalty for the individual defendant. 3 [463 U.S. 939, 962] It is instructive to compare Florida's three-part sentencing scheme with Georgia's two-stage procedure, which we have reviewed and upheld this Term. Zant v. Stephens, 462 U.S. 862 (1983). Under each of these schemes, the defendant may not be sentenced to death unless the sentencing authority - the jury in Georgia, the judge in Florida - makes a threshold determination guided by specific statutory instructions. Georgia's threshold test is simple: a finding of one valid statutory aggravating circumstance is sufficient to make the defendant eligible for the death penalty. In Florida, that is only the first of two required steps before the threshold is crossed. 4 The court must also determine [463 U.S. 939, 963] whether any of the statutorily enumerated mitigating circumstances exist, 5 and if so, whether they outweigh the statutory aggravating circumstances. If they do, life imprisonment rather than a death sentence is required. Shortly after the enactment of the current statute, the Florida Supreme Court explained: "`[T]he procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present . . . .'" Elledge v. State, 346 So.2d 998, 1003 (1977), quoting State v. Dixon, 283 So.2d 1, 10 (Fla. 1973). As we noted in Proffitt: "This determination requires the trial judge to focus on the circumstances of the crime and the character of the individual defendant." 428 U.S., at 251 . In both Florida and Georgia, even if the statutory threshold has been crossed and the defendant is in the narrow class of persons who are subject to the death penalty, the sentencing authority is not required to impose the death penalty. In Georgia, the jury is expressly given broad discretion to choose between death and life imprisonment, taking into account all relevant information - aggravating and mitigating - about the character and background of the accused and the circumstances of the crime. See Zant v. Stephens, supra. In Florida, since more information has already been taken [463 U.S. 939, 964] into account in crossing the threshold, the third-stage determination is more circumscribed - whether, even though the first two criteria have been met, it is nevertheless not appropriate to impose the death penalty. Cases reaching this conclusion tend to fall into either or both of two general categories: 6 (1) those in which statutory aggravating circumstances exist, and arguably outweigh statutory mitigating circumstances, but they are insufficiently weighty to support the ultimate sentence; 7 and (2) those in which, even though statutory mitigating circumstances do not outweigh statutory aggravating circumstances, the addition of nonstatutory mitigating circumstances tips the scales in favor of life imprisonment. 8 [463 U.S. 939, 965] Apparently believing that the Federal Constitution so required, the Florida Supreme Court has adopted a rule that the "aggravating circumstances specified in the statute are exclusive, and no others may be used for that purpose." Purdy v. State, 343 So.2d. 4, 6 (1977); Miller v. State, 373 So.2d 882, 885 (1979); see Cooper v. State, 336 So.2d 1133, 1139 (1976); Provence v. State, 337 So.2d. 783, 786 (1976). 9 Not only has it held that nonstatutory aggravating circumstances do not satisfy the first threshold criterion - whether statutory aggravating circumstances exist. 10 It has also held [463 U.S. 939, 966] that evidence supporting nonstatutory aggravating factors simply may not be introduced into evidence at any stage in the sentencing proceeding. See Elledge v. State, 346 So.2d, at 1002. 11 Under Florida law, the introduction of such evidence is error, although under some circumstances, the Florida Supreme Court treats it as harmless error. 12 The Florida rule that statutory aggravating factors must be exclusive affords greater protection than the Federal Constitution requires. Although a death sentence may not rest [463 U.S. 939, 967] solely on a nonstatutory aggravating factor, see Zant v. Stephens, 462 U.S., at 876 -878, the Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime. Zant, supra, at 878-879; Gregg v. Georgia, 428 U.S., at 164 , 196-197, 206; Proffitt v. Florida, 428 U.S., at 242 , 248, 256-257, n. 14. As we recently wrote in Zant, "[w]hat is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." 462 U.S., at 879 . II In this case the Florida Supreme Court held that the trial judge had properly determined that at least four statutory aggravating circumstances were present. Barclay v. State, 343 So.2d, at 1266, 1270-1271 (1977). Petitioner alleges that none of those four aggravating circumstances withstands scrutiny under Florida law and under our prior cases, including Godfrey v. Georgia, 446 U.S. 420 (1980). But it is not necessary to agree with the Florida Supreme Court's appraisal of all four findings. Under Florida law, if there are no statutory mitigating circumstances, 13 one valid statutory [463 U.S. 939, 968] aggravating circumstance will generally suffice to uphold a death sentence on appeal even if other aggravating circumstances are not valid. 14 The Federal Constitution requires no more, at least as long as none of the invalid aggravating circumstances is supported by erroneous or misleading information. See Zant v. Stephens, supra, at 887-889. I do not accept petitioner's contention that none of the statutory aggravating circumstances found by the trial court may be sustained under Florida law and the Federal Constitution. Tr. of Oral Arg. 15. The trial court found that the murder was "especially heinous, atrocious, or cruel" because the victim "was knocked to the ground and repeatedly stabbed by Barclay as he writhed in pain begging for mercy." App. 46, 133; see id., at 9-14 (statement of facts in sentencing order); 343 So.2d, at 1271, n. 6. 15 The court also found that the crime took place in the commission of a kidnaping, because "the defendants picked up the hitch-hiking victim with intent to murder him. They refused to take him to the place requested and by force and/or threats kept him in their car until they found an appropriate place for the murder." App. 126; see id., at 39. It is not our role to reexamine the trial court's findings of fact, which have been affirmed by the Florida Supreme Court. Assuming those facts to be true, there is no federal constitutional infirmity in these two findings of statutory aggravating circumstances. Petitioner challenges the trial court's findings that in committing the murder, he "KNOWINGLY CREATED A GREAT RISK OF DEATH TO MANY PERSONS," and that the murder was committed to "HINDER THE LAWFUL [463 U.S. 939, 969] EXERCISE OF ANY GOVERNMENTAL FUNCTION OR THE ENFORCEMENT OF THE LAWS." Id., at 122-125, 128-131. 16 He does not, however, dispute the facts recited by the trial court in support of these findings - that he and his colleagues had stalked several potential white victims before picking Stephen Orlando, and that they had sent tapes to a radio station urging mass racial violence. See Brief for Petitioner 5-6, 9-10. This evidence was properly before the advisory jury and the judge because it was admissible at the guilt phase of the proceeding. Thus, whether or not these particular aggravating circumstances have been narrowly defined by the Florida Supreme Court, this case - like Zant v. Stephens - involves challenged findings of "statutory aggravating circumstance[s] . . . whose terms plausibly described aspects of the defendant's background that were properly before the jury and whose accuracy was unchallenged." 462 U.S., at 887 . I am also unpersuaded by petitioner's contention that the trial court committed reversible error of constitutional magnitude by considering nonstatutory aggravating factors. In its discussion of the statutory aggravating circumstance that the defendant was "under sentence of imprisonment" when he committed the murder, the court noted that petitioner had not been in prison at the time of the offense but that he had an extensive prior criminal record which was "an aggravating circumstance." The court also noted that petitioner's previous conviction for breaking and entering with intent to commit larceny was "more of an aggravating than a negative circumstance," even though the record did not show whether [463 U.S. 939, 970] that offense had involved violence, as required by the terms of one of the statutory aggravating circumstances. App. 120-122. But even though, under state law, these factors did not support findings of statutory aggravating circumstances, the information appears to have been properly before the advisory jury and the judge. The Florida Supreme Court has recognized that information about the defendant's prior criminal record may be presented during the sentencing phase to negate one of the statutory mitigating factors. See Booker v. State, 397 So.2d 910, 918 (1981). In any event, nothing in the Federal Constitution bars the introduction of a defendant's prior criminal record, which is highly relevant to his individual background and character. See Zant, 462 U.S., at 887 -888; Proffitt, 428 U.S., at 252 , n. 9. 17 Similarly, the judge's candid exposition of his deeply felt concern about racial crimes had no bearing on any statutory aggravating circumstance, but in and of itself it does not undermine the legitimacy of the ultimate sentence. 18 The sentencing process assumes that the trier of fact will exercise judgment in light of his or her background, experiences, and values. Just as sentencing juries "maintain a link between [463 U.S. 939, 971] contemporary community values and the penal system," Gregg v. Georgia, 428 U.S., at 190 , sentencing judges "`with experience in the facts of criminality posses[s] the requisite knowledge to balance the facts of the case against the standard criminal activity . . . .'" Proffitt, supra, at 252, n. 10, quoting State v. Dixon, 283 So.2d, at 8. Of course, if the criteria imposed by law are not satisfied in a particular case, a trial judge's reactions based on his personal experiences cannot justify the death penalty. But that is not the case here. Petitioner emphasizes, however, that the jury recommended life imprisonment and that the court rejected that recommendation. As we held in Proffitt, a State may constitutionally give the court the authority to accept or reject the jury's conclusion. 428 U.S., at 252 . The court's decision must itself be consistent with constitutional standards, but those standards were not violated in this case. As petitioner's own statement of facts makes clear, the jury was erroneously informed by defense counsel in closing argument that petitioner "had never been convicted of a crime and had no criminal charges pending against him." 19 This statement may have led the jury to believe that there was a statutory mitigating circumstance - no substantial history of prior criminal activity. But the presentence report revealed that petitioner had previously served six months for the felony of uttering a forgery, had been on probation for the felony of breaking and entering with intent to commit grand larceny, and had been arrested on several misdemeanor charges and convicted of at least one. 20 The judge could properly consider that information in deciding whether to accept or reject the jury's recommendation. 21 In addition, even if the jury [463 U.S. 939, 972] found that there were nonstatutory mitigating factors, it is clear that the trial court knew of each of the factors petitioner recites and did not find them persuasive. 22 If we find that proper procedures have been followed, in the end it is not our function to decide whether we agree with the 7-to-5 majority of the advisory jury or with the trial judge. The Florida Supreme Court has held that, under state law, it was permissible on these facts for the court to reject the jury's recommendation of life imprisonment. 343 So.2d, at 1271. 23 Finally, petitioner contends that the Florida Supreme Court has abdicated its constitutionally mandated responsibility to perform meaningful appellate review. This contention cannot stand or fall on a single case, particularly since the rather unusual circumstances in this case help to explain the limited analysis provided by the Florida Supreme Court. On direct appeal from the initial imposition of the death sentence [463 U.S. 939, 973] in 1975, it appears that petitioner did not challenge the validity of any of the statutory aggravating circumstances. Pet. for Cert. 2. The sentence was affirmed. Most of the Florida case law on which petitioner now relies was developed after the initial decision in his case. See generally Brief for Petitioner 29-83. Barclay did not receive the benefit of this case law because of the limited nature of the Florida Supreme Court's remand in light of this Court's decision in Gardner v. Florida, 430 U.S. 349 (1977). When that court vacated the death sentence and ordered the trial court to hold a hearing to permit petitioner to rebut undisclosed information in the presentence report, it applied a uniform procedure which expressly limited the scope of the trial court's proceedings and the scope of appellate review to "matters related to compliance with this order." 362 So.2d 657, 658 (1978). 24 The court's subsequent opinion accordingly dealt only with the presentence report and treated the previous affirmance of the death sentence as "law of the case" with regard to the aggravating circumstances. More generally, the question is whether, in its regular practice, the Florida Supreme Court has become a rubber stamp for lower court death-penalty determinations. It has not. On 212 occasions since 1972 the Florida Supreme Court has reviewed death sentences; it has affirmed only 120 of them. The remainder have been set aside, with instructions either to hold a new sentencing proceeding or to impose a life sentence. In making these judgments the court has the benefit of specific written findings by the trial court, setting [463 U.S. 939, 974] forth the facts underlying each aggravating and mitigating circumstance. See State v. Dixon, 283 So.2d, at 8. Although no appellate court's written decisions, including those of the Florida Supreme Court, are always a model of clarity and analysis, the actual decisions by that court have confirmed one of the premises supporting our decision in Proffitt - "The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida `to determine independently whether the imposition of the ultimate penalty is warranted.' Songer v. State, 322 So.2d 481, 484 (1975). See also Sullivan v. State, 303 So.2d 632, 637 (1974)." 428 U.S., at 253 . The cursory analysis in the two opinions upholding petitioner's death sentence - which admittedly I do not applaud - does not require us to set aside the sentence when we have determined that the sentence itself does not suffer from any constitutional flaw. I therefore concur in the judgment. [Footnote 1 Gilven v. State, 418 So.2d 996, 999 (1982); Lewis v. State, 398 So.2d 432, 438 (1981); Williams v. State, 386 So.2d 538, 542 (1980); McCaskill v. State, 344 So.2d 1276, 1280 (1977); Burch v. State, 343 So.2d 831, 834 (1977); Tedder v. State, 322 So.2d 908, 910 (1975) ("In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ"). [Footnote 2 The text sets forth the statutory procedure that existed at the time of petitioner's trial in April 1975. Subsequently the Florida Legislature amended the law to prescribe, at stage (2), a determination whether the statutory aggravating circumstances are outweighed by any mitigating circumstances, statutory or nonstatutory. 1979 Fla. Laws, ch. 79-353. See Moody v. State, 418 So.2d 989, 995 (Fla. 1982) (setting aside death sentence because sentencing order did not make clear whether the trial court had considered nonstatutory mitigating circumstances). The amended statute, which became effective in July 1979, was not applied to petitioner in his subsequent resentencing proceeding. Brief for Petitioner 23, n. 7. As long as evidence of mitigation was not excluded from consideration at the sentencing proceeding, see Songer v. State, 365 So.2d 696, 700 (Fla. 1978) (construing pre-1979 statute), the version of stage (2) applied in petitioner's case was consistent with our decisions in Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982). Neither of these cases establishes the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all. See, e. g., Eddings, supra, at 114-115, and n. 10. The Constitution does not require that nonstatutory mitigating circumstances be considered before the legal threshold is crossed and the defendant is found to be eligible for the death sentence. It is constitutionally acceptable to bring such evidence into the decisionmaking process as part of the discretionary post-threshold determination. In this case petitioner does not contend that any relevant mitigating evidence was excluded from his initial sentencing hearing, or that the trial court or jury was precluded as a matter of law from considering any information or arguments in mitigation. See Brief for Petitioner 18-19 (nonstatutory mitigating circumstances). [Footnote 3 The language of the statute is consistent with this tripartite analysis. The jury is instructed to "deliberate and render an advisory sentence to the court, based upon the following matters: "(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5); [463 U.S. 939, 962] "(b) Whether sufficient mitigating circumstances exist as enumerated in subsection (6), which outweigh the aggravating circumstances found to exist; and "(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death." Fla. Stat. 921.141(2) (1977). Similarly, the trial court must impose life unless he makes certain findings, though the statute does not require him to impose death if he does make these findings: "(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and "(b) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances." Fla. Stat. 921.141(3) (1977). With regard to the third stage, Florida case law appears to have evolved over time. An early case suggested that there was no discretion after the first two criteria had been satisfied. Cooper v. State, 336 So.2d 1133, 1142 (Fla. 1976) ("Imposition of the death penalty is never pleasant. Here it cannot be avoided. The statute demands a decision from this Court, and we are bound to follow the law. In this case there were three aggravating and no mitigating circumstances. There is no alternative to the death penalty"). In general, however, the Florida Supreme Court appears to recognize that, though the first two findings establish a "presumption," that presumption may be overcome. See, e. g., Williams v. State, supra, at 543 (jury's recommendation of life militates against the presumption). [Footnote 4 In both Florida and Georgia, if the appellate court finds that no valid statutory aggravating circumstances are adequately supported by the record, the death sentence cannot stand because the legally mandated [463 U.S. 939, 963] threshold has not been crossed. See, e. g., Arnold v. State, 236 Ga. 534, 539-542, 224 S. E. 2d 386, 390-392 (1976); Kampff v. State, 371 So.2d 1007, 1009-1010 (Fla. 1979). This is the case, of course, if only non-statutory aggravating circumstances have been found. [Footnote 5 If the trial judge applies the wrong standard in determining the presence or absence of mitigating circumstances, the Florida Supreme Court will vacate the death sentence. Ferguson v. State, 417 So.2d 631, 638 (Fla. 1982). [Footnote 6 These two categories appear at the appellate level in Florida Supreme Court decisions vacating death sentences. It is fair to assume that Florida trial courts, governed by the principles set forth by the State's highest court, apply the same criteria on some occasions to justify imposition of life imprisonment. Such cases would not appear among the reported decisions because the State may not appeal a life sentence. State v. Dixon, 283 So.2d 1, 8 (1973). [Footnote 7 See Lewis v. State, 398 So.2d, at 438-439 (only valid statutory aggravating circumstance was that the defendant was on parole from a prison sentence at the time of the murder; no statutory mitigating circumstances); Williams v. State, 386 So.2d, at 543 (at most one valid statutory aggravating circumstance, hindering the enforcement of the laws; no statutory or nonstatutory mitigating circumstances); Provence v. State, 337 So.2d. 783, 786-787 (Fla. 1976) (only one statutory aggravating factor, murder in the commission of a robbery; no reference to mitigating circumstances). The existence of this category of cases helps to fulfill one of the constitutionally required functions of a death penalty scheme - "reasonably justify[ing] the imposition of a more severe sentence on the defendant compared to others found guilty of murder," Zant v. Stephens, 462 U.S. 862, 877 (1983). [Footnote 8 As discussed in n. 2, supra, under the pre-1979 statute, consideration of nonstatutory mitigating circumstances at the third stage sufficed to satisfy the constitutional requirement set forth in Lockett and Eddings. This factor, as well as the weakness of the valid aggravating circumstance, apparently underlies the Florida Supreme Court's decision in Lewis v. State, 398 So.2d 432 (1981). Lewis' trial took place before the 1979 amendment to the statute. The jury recommended life; the trial court, finding no [463 U.S. 939, 965] statutory mitigating circumstances, nevertheless imposed the death sentence. The Florida Supreme Court reversed and remanded, stating that "the jury is not limited, in its evaluation of the question of sentencing, to consideration of the statutory mitigating circumstances. It is allowed to draw on any considerations reasonably relevant to the question of mitigation of punishment." Id., at 439. In addition, in some cases decided under the pre-1979 statute, see n. 2, supra, the Florida Supreme Court did not expressly conduct the stage (2) balancing literally required by the statute, but held that the "mitigating circumstances" - including nonstatutory factors - outweighed the aggravating circumstances. See Halliwell v. State, 323 So.2d 557, 561 (1975) (defendant, inter alia, was a highly decorated Green Beret who had served in Vietnam); Buckrem v. State, 355 So.2d 111, 113 (Fla. 1978) (defendant was "gainfully employed"). [Footnote 9 This rule appears to have been adopted after Barclay's 1975 trial, and after our 1976 decision in Proffitt. In that case the trial court relied on three statutory aggravating circumstances and one nonstatutory aggravating factor - that petitioner "has the propensity to commit murder." The Florida Supreme Court, without comment, approved all of these findings, and we upheld the death sentence. Proffitt v. State, 315 So.2d 461, 466-467 (1975), aff'd, 428 U.S. 242, 246 -247 (1976). See also Sawyer v. State, 313 So.2d 680, 681-682 (Fla. 1975) (twice referred to in our Proffitt opinion, 428 U.S., at 250 , n. 8, 256-257, n. 14). In Proffitt we assumed that the trial court was authorized to receive evidence on any matter that it deemed relevant to sentencing. Id., at 248. [Footnote 10 Purdy v. State, 343 So.2d 4, 6 (1977) ("Under the provisions of Section 921.141, Florida Statutes, aggravating circumstances enumerated in the statute must be found to exist before a death sentence may be imposed. The specified statutory circumstances are exclusive; no others may be used for that purpose"). [Footnote 11 The court remanded to the trial court for a new sentencing trial "at which the factor of the Gaffney murder shall not be considered." 346 So.2d, at 1003. [Footnote 12 In Elledge, the trial court imposed the death penalty in reliance on a nonstatutory circumstance and several statutory aggravating circumstances. After holding that consideration of the nonstatutory factor was error, the Florida Supreme Court enunciated the touchstone for determining whether it was reversible error: the presence or absence of mitigating circumstances. As long as mitigating circumstances had been found, it was impossible to know whether the result of the statutorily required weighing process would have been different in the absence of the impermissible nonstatutory aggravating factor. See also Riley v. State, 366 So.2d 19, 22 (Fla. 1979); Mikenas v. State, 367 So.2d 606, 610 (Fla. 1978); Menendez v. State, 368 So.2d 1278, 1281 (Fla. 1979); Blair v. State, 406 So.2d 1103, 1109 (Fla. 1981). On the other hand, as the Elledge court also noted, if there were no statutory mitigating circumstances, and if the court had found at least one statutory aggravating circumstance along with a nonstatutory aggravating factor, "there is no danger that nonstatutory circumstances have served to overcome the mitigating circumstances in the weighing process which is dictated by our statute." 346 So.2d, at 1003. By definition, one or more statutory aggravating circumstances will always outweigh the complete absence of statutory mitigating circumstances. Furthermore, in another case, Brown v. State, 381 So.2d 690 (1980), the Florida Supreme Court held that, because the trial court had stated that the one mitigating circumstance, appellant's age, had "only `some minor significance,'" the death sentence could be sustained even though the court relied on two improper aggravating circumstances as well as two well-founded aggravating circumstances. Id., at 696. "This is so because unlike Elledge, here `we can know' that the result of the weighing process would not have been different had the impermissible factors not been present." Ibid. [Footnote 13 Petitioner argues that the jury must have found nonstatutory mitigating circumstances, Brief for Petitioner 90, n. 29, because when it recommended life imprisonment, it stated that "sufficient mitigating circumstances do exist which outweigh any aggravating circumstances." Id., at 88, quoting Sentencing Phase Tr. 180. But at the time of Barclay's trial, nonstatutory mitigating circumstances did not play any role under Florida law in determining whether the legal threshold had been crossed. As we have explained above, this procedure was not constitutionally infirm. See n. 2, supra. Nor does the possible existence of nonstatutory mitigating circumstances require that the death sentence automatically be set aside if one or more statutory aggravating circumstances are invalid under state law, or if nonstatutory aggravating factors have improperly been considered. As long as the Federal Constitution did not bar introduction of the [463 U.S. 939, 968] evidence underlying those aggravating factors, it does not require that the death sentence be set aside. See Zant v. Stephens, 462 U.S., at 888 -889. [Footnote 14 See n. 12, supra; but see n. 7, supra (citing cases). [Footnote 15 In Proffitt, we rejected a facial attack on this aggravating circumstance, see 428 U.S., at 255 -256. As applied to the facts found by the trial court in this case, see ante, at 942-944, the application of this factor raises no constitutional problems. See State v. Dixon, 283 So.2d, at 9; cf. Godfrey v. Georgia, 446 U.S. 420 (1980). [Footnote 16 Petitioner bases his challenges to these two aggravating circumstances in large part on Godfrey v. Georgia, supra. See Brief for Petitioner 45, 47, 57-58. We need not decide whether the principles of Godfrey have been violated by these two findings, because other statutory aggravating circumstances are valid. In contrast, in Godfrey, once the "broad and vague" aggravating circumstance was struck down, no valid statutory aggravating circumstances remained. See Godfrey, supra, at 426, 432-433, n. 15; Zant v. Stephens, supra, at 878. [Footnote 17 In Proffitt we expressly noted that the trial court "may order preparation of a presentence investigation report to assist him in determining the appropriate sentence. . . . These reports frequently contain much information relevant to sentencing." 428 U.S., at 252 , n. 9. Petitioner's trial took place before this Court's decision in Gardner v. Florida, 430 U.S. 349 (1977), which held that due process requires that such materials be provided to defense counsel to permit explanation and rebuttal of potentially misleading or inaccurate information. The Florida Supreme Court sua sponte vacated the original sentence and remanded for a Gardner hearing regarding the accuracy of the undisclosed portions of the presentence investigation report. On remand the trial court found that petitioner's responses did not affect the original sentence; the Florida Supreme Court affirmed; and the issue is not before us on certiorari. [Footnote 18 This is not because it assisted the trial court in "weighing the `especially heinous, atrocious, or cruel' statutory aggravating circumstance," ante, at 949, but because it pertained more generally to the trial judge's exercise of his sentencing discretion - the third stage of the sentencing process. [Footnote 19 Brief for Petitioner 18. [Footnote 20 App. 17-18, 25, 33, 34-35, 107-108, 121-122. [Footnote 21 The Florida statute gives the trial court an independent duty to determine whether mitigating circumstances exist, and the Florida Supreme Court has approved the court's reliance on information not available to the [463 U.S. 939, 972] jury. White v. State, 403 So.2d 331, 339-340 (1981); Swan v. State, 322 So.2d 485, 488-489 (1975). [Footnote 22 See Brief for Petitioner 90-92, n. 29. Barclay was 23 years old, gainfully employed and the father of several children. App. 25, 30-31, 115, 119. He did not inflict the mortal wounds. Id., at 23, 112. Dougan, not Barclay, originated the idea and was the "leading force" in implementing it. Id., at 24, 113. Three other codefendants, Hearn, Crittendon, and Evans, received prison sentences. Id., at 22-24, 113. Recognizing these facts, the trial court also found them to be negated or outweighed by other factors. For example, even though Dougan rendered the "coup de grace," the trial court found that "[t]he evidence shows that Barclay was the first to demonstrate homicidal intent by throwing the victim to the ground and repeatedly stabbing him with a knife." Id., at 23; see id., at 112. And even though Dougan was the ringleader, the court found that both petitioner and Dougan were "the primary culprits" and "both were the major participants," id., at 24-25; see id., at 113-114, and that Barclay was not under the substantial domination of Dougan or any other person. Id., at 26, 114-116. [Footnote 23 The Florida Supreme Court has overturned numerous death sentences imposed by trial courts despite a jury recommendation of life imprisonment. See Walsh v. State, 418 So.2d 1000, 1003-1004 (1982) (listing 23 such cases). It has also upheld a substantial number of such sentences. Ibid. The disposition of each case depends on its particular circumstances. [Footnote 24 The Florida Supreme Court adopted a uniform procedure for hearings on remand in light of Gardner v. Florida. It explained this procedure in Dougan v. State, 398 So.2d 439, 440 (1981): "Our directive was quite clear that this Court would review a reimposition of the death penalty `limited to matters related to the compliance with this order.'. . . Our vacation of Dougan's death sentence for Gardner relief was technically-based, serving the sole purpose of allowing Dougan's counsel to demonstrate that matters contained in the pre-sentence investigation report were improper and prejudicial." JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. Based on a sentencing order rife with errors, the trial judge condemned petitioner Elwood Barclay to death. The Florida Supreme Court then conducted a perfunctory review and affirmed the sentence. Today the plurality approves this miscarriage of justice. In doing so it is utterly faithless to the safeguards established by the Court's prior decisions. I dissent. [463 U.S. 939, 975] I I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 231 (1976) (MARSHALL, J., dissenting); Furman v. Georgia, 408 U.S. 238, 358 -369 (1972) (MARSHALL, J., concurring). I would vacate petitioner's death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would vacate the death sentence imposed in this case. II In order to assess the process by which petitioner was sentenced to death, it is vital to understand the trial judge's explanation for his sentence of death and the subsequent review of that sentence by the Florida Supreme Court. In my view the plurality's discussion of these matters is woefully incomplete. I therefore begin by setting out the facts necessary for our review. A Under Florida law, if a defendant is found guilty of a capital offense, a separate sentencing hearing is held. Fla. Stat. 921.141(1) (1977). After hearing evidence relating to aggravating and mitigating circumstances, the jury renders an advisory verdict. 921.141(2). The judge then imposes sentence. In this case, the jury concluded that sufficient aggravating circumstances did not exist to justify a death sentence and that mitigating circumstances existed which outweighed any aggravating circumstances. 1 It therefore recommended life imprisonment. The trial judge rejected [463 U.S. 939, 976] the jury's recommendation, however, and sentenced petitioner to death. The rationale for the judge's decision is set forth in his sentencing order, which states his findings as to the mitigating and aggravating circumstances set out in the Florida capital punishment statute. See App. 1; 921.141(3). The trial judge found that none of the statutory mitigating circumstances applied to Barclay. 2 Instead, the judge concluded that the absence of one of the mitigating circumstances itself constituted an aggravating circumstance. Florida law identifies as a mitigating circumstance the fact that a defendant "has no significant history of prior criminal activity." 921.141(6)(a). The statute does not make the presence of a significant history of prior criminal activity an aggravating circumstance. 921.141(5). See Maggard v. State, 399 So.2d 973, 977-978 (Fla. 1981). Nonetheless, after finding that petitioner had a criminal record, the trial judge stated that the prior record constituted an aggravating circumstance. App. 19. This determination was clearly lawless. The Florida Supreme Court has expressly held that a "substantial history of prior criminal activity is not an aggravating circumstance under the statute." Mikenas v. State, 367 So.2d 606, 610 (1978). The trial judge then turned to the eight aggravating circumstances that the Florida Legislature had actually established. 3 [463 U.S. 939, 977] Even though the State had relied on only one of these circumstances during the sentencing hearing, 4 the trial judge managed to find that six were relevant. The first aggravating circumstance applies if a capital felony has been "committed by a person under sentence of imprisonment." 921.141(5)(a). The judge stated that Barclay was not under imprisonment at the time of the capital offense - a fact which should have been dispositive under the plain language of the statute. Nonetheless, the judge then pointed to Barclay's prior arrests and the fact that he had previously been on probation for a felony, and he again stated that petitioner's record constituted an aggravating circumstance. App. 33. Reliance on the arrests was certainly improper under Florida law, because any charge which has "not resulted in a conviction at the time of the [capital] trial" is "a nonstatutory aggravating factor." Elledge v. State, 346 So.2d 998, 1002 (Fla. 1977). See also Provence v. State, 337 So.2d 783, 786 (Fla. 1976). Reliance on the fact that petitioner had formerly been on probation was also error, since the sentence of imprisonment must exist at the time of the capital felony. See Ferguson v. State, 417 So.2d 631, 636 (Fla. 1982); Peek v. State, 395 So.2d 492, 499 (Fla. 1980). The second aggravating circumstance found by the trial judge was that petitioner had been "previously convicted of another capital felony or of a felony involving the use or threat of violence to the person." 921.141(5)(b). The court based this finding on petitioner's presentence report, which showed an earlier conviction for breaking and entering with intent to commit grand larceny. Although there was absolutely no evidence that this prior felony involved the use or threat of violence, the judge asserted that "such crime can [463 U.S. 939, 978] and often does involve violence or threat of violence." App. 35. The judge's reliance on this aggravating circumstance was contrary to Florida law. This statutory factor applies only where "the judgment of conviction discloses that it involved violence," Mann v. State, 420 So.2d 578, 581 (Fla. 1982), and the Florida Supreme Court has explicitly held that the crime of breaking and entering with intent to commit a felony does not constitute a crime of violence within the meaning of this provision. Lewis v. State, 398 So.2d 432, 438 (1981); Ford v. State, 374 So.2d 496, 501-502, and n. 1 (1979), cert. denied, 445 U.S. 972 (1980). Moreover, the trial judge's reliance on information contained in the presentence report to establish this aggravating circumstance itself constituted an error under state law. See Williams v. State, 386 So.2d 538, 542-543 (Fla. 1980). The trial court next found that petitioner had "knowingly created a great risk of death to many persons." 921.141(5) (c). This statutory circumstance was directed at conduct creating a serious danger to a large group of people, such as exploding a bomb in a public place or hijacking an airplane. 5 Thus, something in the nature of the homicidal act itself or in the conduct immediately surrounding the act must create a great risk to many people. Bolender v. State, 422 So.2d 833, 838 (Fla. 1982); Ferguson v. State, 417 So.2d 639, 643, 645 (Fla. 1982); Tafero v. State, 403 So.2d 355, 362 (Fla. 1981); Kampff v. State, 371 So.2d 1007, 1009 (Fla. 1979); Elledge v. State, supra, at 1004. For example, the aggravating circumstance does not apply when "no one else was around" at the time of the capital felony, even though the murderer then flagged down a passing motorist and struck [463 U.S. 939, 979] him with a machete, drove at high speeds over a significant distance, and took a hostage and threatened to kill her. Mines v. State, 390 So.2d 332, 337 (Fla. 1980). It is undisputed in this case that the murder took place at "an isolated trash dump" where no one other than the perpetrators and the single victim was present. See Barclay v. State, 343 So.2d 1266, 1267 (Fla. 1977). The trial judge incorrectly relied on conduct occurring both before and after the capital felony. App. 38. Invocation of this aggravating circumstance was therefore clearly unauthorized by state law. The trial court's remaining findings are also problematic. For example, the judge found as a fourth aggravating circumstance that the murder was committed during a kidnaping. Id., at 39-40; see 921.141(5)(d). However, the only witness who testified about the circumstances prior to the murder noted that the victim, a hitchhiker, willingly entered the car and rode with the defendants voluntarily. 6 At the close of the trial on the issue of guilt, the trial judge himself had deemed the evidence insufficient to establish a kidnaping for purposes of giving a jury instruction as to felony murder. The trial judge's explanation of his sentence is all the more remarkable in light of two salient requirements of the Florida death penalty scheme. First, each of the statutory aggravating circumstances "must be proved beyond a reasonable doubt before being considered by judge or jury." State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943 (1974). Second, when the jury has recommended a life sentence, the judge may not impose a death sentence unless "`the facts suggesting a sentence of death [are] so clear and convincing that no reasonable person could differ.'" Proffitt v. Florida, 428 U.S. 242, 249 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), quoting Tedder v. State, 322 So.2d 908, [463 U.S. 939, 980] 910 (Fla. 1975). In light of these standards, the judge's sentencing order in this case was totally inadequate. B Nor can the sentencing judge's abysmal performance be deemed inadvertent or aberrant. To begin with, after the Florida Supreme Court had vacated the original sentence and remanded the case for reconsideration in light of Gardner v. Florida, 430 U.S. 349 (1977), petitioner's counsel brought to the attention of the trial judge several flagrant legal errors in the original sentencing order. 7 For example, counsel noted that defendant's prior criminal record was not a proper aggravating circumstance, citing a controlling decision of the Florida Supreme Court, Mikenas v. State, 367 So.2d 606 (1978). 8 Even the plurality acknowledges that the trial judge erred in this finding. Ante, at 946. Nonetheless, the trial judge drafted a new sentencing order which simply repeated his prior erroneous analysis. App. 107-108. The trial judge's actions in other capital cases are also instructive. Judge Olliff has sentenced three other defendants to death besides petitioner and his codefendant. 9 In each of these cases, as in petitioner's case, Judge Olliff ignored a jury's advisory sentence of life imprisonment. 10 In each of the cases, as in petitioner's case, the judge failed to find a single mitigating circumstance. The judge has repeatedly found [463 U.S. 939, 981] that the felony was committed by a person under a sentence of imprisonment, that the defendant had previously been convicted of a violent felony, and that the defendant created a great risk of death to many persons, even though virtually all of these findings had no foundation in Florida law. 11 And each time, Judge Olliff has recounted his experiences during World War II and recited boilerplate language to the effect that he was not easily shocked but that the offense involved shocked him. 12 [463 U.S. 939, 982] C In reviewing the hopelessly flawed sentencing order, the Florida Supreme Court did not identify a single error in the trial judge's explanation. Instead, it praised Judge Olliff's performance: "The trial judge here painstakingly and with reasoned judgment detailed the factors which caused his departure from the jury's recommendation. His thorough analysis is precisely the type we would expect from mature, deliberative judges in this state. It suggests why the Legislature put the trial judges of Florida in the middle of the sentencing process for capital cases." 343 So.2d, at 1271, n. 8 (emphasis added). [463 U.S. 939, 983] The Florida Supreme Court's perfunctory analysis focused on the death sentence imposed on petitioner's codefendant, Jacob Dougan. Id., at 1270-1271. The court subsequently indicated that "virtually the same considerations" applied to Barclay. Id., at 1271. As a result, it never discussed the trial judge's specific findings concerning Barclay. With respect to the aggravating circumstances applicable to Dougan, the Florida Supreme Court stated that "the trial judge recited that four factors essentially had no relevance here." Ibid. (footnote omitted). However, two of the factors referred to in this sentence were aggravating circumstances that the trial judge had explicitly discussed. 13 In short, the Florida Supreme Court mischaracterized the trial judge's opinion as to these aggravating circumstances. 14 The Florida Supreme Court then listed the four other aggravating circumstances that had been relied upon and stated in conclusory fashion that the trial judge's findings were "well documented in the record before us." Ibid. The Florida Supreme Court recognized that the jury had recommended a life sentence for Barclay. But the court stated that this recommendation was properly rejected so that there would be no disparity of treatment between Dougan and Barclay: "`Equal Justice Under Law' is carved over the doorway to the United States Supreme Court building [463 U.S. 939, 984] in Washington. It would have a hollow ring in the halls of that building if the sentences in these cases were not equalized." Ibid. The court ignored the differences between Barclay and Dougan which the jury had apparently found decisive. In addition to obscuring the proper focus on the individual offender, the court's invocation of principles of equal justice is particularly inappropriate in this case in light of the treatment of two of petitioner's codefendants, Evans and Crittendon. Both of these individuals participated in the murder of Stephen Orlando; indeed, Evans was the first to stab Orlando. 15 Moreover, after Orlando was murdered, Evans and Crittendon committed a second murder in the name of the Black Liberation Army in which petitioner Barclay played absolutely no part. 16 Yet, these two received prison sentences while Barclay was condemned to death. III The procedures by which Elwood Barclay was condemned to die cannot pass constitutional muster. First, the trial judge's reliance on aggravating circumstances not permitted under the Florida death penalty scheme is constitutional error that cannot be harmless. Second, the Florida Supreme Court's failure to conduct any meaningful review of the death sentence deprived petitioner of a safeguard that the Court has deemed indispensable to a constitutional capital sentencing scheme. A Under Florida law the imposition of the death sentence depends critically on the findings of statutory aggravating circumstances. First, for a defendant to be sentenced to death, the court must determine that "sufficient [statutory] aggravating circumstances exist." 921.141(3)(a) (emphasis added). Second, the court must determine that there [463 U.S. 939, 985] are "insufficient mitigating circumstances . . . to outweigh the aggravating circumstances." 921.141(3)(b). The sentencer therefore not only weighs aggravating against mitigating circumstances, but even in the absence of mitigating circumstances the sentencer must weigh the statutory circumstances alone to determine their sufficiency. Florida law clearly limits aggravating circumstances to those enumerated in the statute. 921.141(5). Thus, "the specified statutory circumstances are exclusive; no others may be used for that purpose." Purdy v. State, 343 So.2d 4, 6 (Fla. 1977). Accord, Odom v. State, 403 So.2d 936, 942 (Fla. 1981); Spaziano v. State, 393 So.2d 1119, 1122-1123 (Fla. 1981); Miller v. State, 373 So.2d 882, 885 (Fla. 1979); Provence v. State, 337 So.2d, at 786. 17 Because Florida law prohibits reliance on nonstatutory aggravating circumstances, the trial judge's invocation of such circumstances in this case assumes special significance. In Hicks v. Oklahoma, 447 U.S. 343 (1980), this Court held that when a State has provided for the imposition of criminal punishment subject to certain procedural protections, it is not correct to say that the denial of one of those protections "is merely a matter of state procedural law." Id., at 346. Eight Justices agreed that the defendant in such a case "has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent" provided for by state law, and that such an interest is constitutionally protected. Ibid. See also Vitek v. Jones, 445 U.S. 480, 488 -489 (1980). The State of Florida has determined that a trial judge may not rely upon nonstatutory aggravating circumstances in sentencing [463 U.S. 939, 986] a defendant to death. The propriety of a death sentence imposed on the basis of nonstatutory aggravating circumstances is therefore not merely a matter of state law. A criminal defendant has a substantial and legitimate expectation that such circumstances will not be employed in sentencing him to death. The state-created protection cannot be arbitrarily abrogated, as it was here, without violating the Constitution. Reliance on nonstatutory aggravating factors also runs afoul of this Court's "insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). Fairness and consistency cannot be achieved without "`clear and objective standards' that provide `specific and detailed guidance.'" Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion), quoting Proffitt v. Florida, 428 U.S., at 253 (opinion of Stewart, POWELL, and STEVENS, JJ.), and Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality opinion). 18 Indeed, the Florida death penalty scheme was approved on the understanding that it required "an informed, focused, guided, and objective inquiry into the question whether [a defendant] should be sentenced to death." Proffitt v. Florida, supra, at 259 (opinion of Stewart, POWELL, and STEVENS, JJ.). Because Florida limits consideration of aggravating circumstances to certain enumerated factors and because the weighing of those factors plays a crucial role in the sentencing process, fairness and consistency cannot be achieved if nonstatutory aggravating circumstances are randomly introduced into the balance. If one judge follows the law in sentencing a capital defendant but another judge injects into the weighing process any number of nonstatutory factors in aggravation, or if the same judge selectively relies on such circumstances, the fate of an individual defendant will inevitably [463 U.S. 939, 987] depend on whether on a given day his sentencer happened to respect the constraints imposed by Florida law. The decision to execute a human being surely should not depend on such potluck. The plurality opinion departs from the Court's past insistence on consistency and fairness in the capital sentencing process. Under the plurality's view, the standard for review of a death sentence would apparently be "limited" to whether its imposition was "so unprincipled or arbitrary as to somehow violate the United States Constitution." Ante, at 947. 19 This standard is devoid of any meaningful content. It is simply tautological: a decision to impose the death sentence is not unconstitutional so long as it "is not so wholly arbitrary as to offend the Constitution." Ante, at 950-951. This implies that in death cases there are degrees of acceptable arbitrariness and that there exists some undefined point at which a sentence crosses over into the nether world of "wholly" arbitrary decisionmaking. I see no way to reconcile this standard with the requirements of the Constitution. Nor can I agree that reliance on nonstatutory aggravating circumstances under the Florida scheme can be deemed harmless error. Florida law puts special emphasis on the finding of an aggravating circumstance. 20 Moreover, the sentencer always has discretion not to impose the death sentence in an individual case. Under these circumstances, we are "not at liberty to assume that items given . . . emphasis by the sentencing court did not influence the sentence which the prisoner [received]." Townsend v. Burke, 334 U.S. 736, 740 (1948). Protecting against the arbitrary imposition [463 U.S. 939, 988] of the death penalty "must not become simply a guessing game played by a reviewing court in which it tries to discern whether the improper nonstatutory aggravating factors exerted a decisive influence on the sentence determination. The guarantee against cruel and unusual punishment demands more." Henry v. Wainwright, 661 F.2d 56, 59-60 (CA5 1981). Where a life is at stake, the risk that a particular defendant has been selected for the wrong reason is unacceptable and incompatible with the Eighth and Fourteenth Amendments. See Lockett v. Ohio, 438 U.S. 586, 605 (1978). Given the "extraordinary measures" this Court has undertaken to guarantee "as much as is humanly possible" that a death sentence has not been imposed by "mistake," Eddings v. Oklahoma, supra, at 118 (O'CONNOR, J., concurring), a remand for resentencing is the least that is required. B To avoid the arbitrary and capricious imposition of the death penalty, this Court has also stressed "the further safeguard of meaningful appellate review." Gregg v. Georgia, 428 U.S., at 195 (opinion of Stewart, POWELL, and STEVENS, JJ.). See Proffitt v. Florida, supra, at 253 (opinion of Stewart, POWELL, and STEVENS, JJ.); Godfrey v. Georgia, supra, at 429 (plurality opinion); Zant v. Stephens, 456 U.S. 410, 413 -414 (1982). In his opinion concurring in the judgment, JUSTICE STEVENS notes the importance of this safeguard. Ante, at 973-974. In my view, the failure of the Florida Supreme Court to conduct any considered appellate review in this case requires that petitioner's death sentence be vacated. If appellate review is to be meaningful, it must fulfill its basic historic function of correcting error in the trial court proceedings. A review for correctness reinforces the authority and acceptability of the trial court's decision and controls the adverse effects of any personal shortcomings in the [463 U.S. 939, 989] initial decisionmaker. 21 The Florida Supreme Court's review of Barclay's sentence utterly failed to fulfill this function. The court glossed over all of the errors in the sentencing order. Instead, it lauded the trial judge's performance, stating that Judge Olliff's "thorough analysis is precisely the type we would expect." 343 So.2d, at 1271, n. 8. Given such encouragement, it is hardly surprising that in subsequent cases Judge Olliff has persisted in misapplying the Florida death penalty statute. 22 The trial judge in this case plainly misapplied aggravating circumstances enumerated in Florida law. For example, he relied upon a conviction for breaking and entering to establish that petitioner had previously been convicted of a violent felony, even though the Florida Supreme Court has expressly held that such a crime does not satisfy the statutory factor. Similarly, the judge concluded that petitioner had created a great risk of death to many persons even though the homicidal act itself created no such risk. Faced with such findings, the Florida Supreme Court simply failed to consider whether they were consistent with Florida law. Conceivably it would have been possible to reconcile the findings in this case with other decisions which the Florida Supreme Court has rendered, although I doubt it. But if the process of appellate review means anything, it requires that the legal principles applied in one case be harmonized with settled law. The plurality proceeds on the unfounded assumption that, although errors may have been made by the trial judge, the Florida Supreme Court nonetheless concluded that the errors were harmless. The plurality states: "[T]he Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this [463 U.S. 939, 990] analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance." Ante, at 958. The plurality's reliance on the harmless-error doctrine has no relation to the Florida Supreme Court's decision in this case. As one might surmise from the terminology, a "harmless-error" inquiry refers to a process by which an appellate court identifies legal errors and then determines whether they could have affected the judgment being reviewed. Here, the Florida Supreme Court did not identify any legal errors in the trial judge's sentencing order; it extolled the merits of the sentencing order. It therefore never reached the question whether the error was harmless. The Florida Supreme Court's decision in this case can readily be contrasted with those decisions in which it actually conducted a harmless-error analysis. For example, in White v. State, 403 So.2d 331 (1981), cited ante, at 955, the court examined each of the aggravating circumstances upon which the sentencer had relied, explained the errors that the sentencer had committed, and then assessed the significance of the errors. 403 So.2d, at 337-339. The plurality's reliance on the harmless-error review conducted by the Florida Supreme Court in other cases is entirely misplaced. See ante, at 955, 958. When a defendant's life is at stake, it hardly suffices to tell him that some of the time the State's highest court does its job. Every defendant sentenced to death is entitled to meaningful appellate review, and where it is clear that the Florida Supreme Court has not provided such review, the death sentence should be vacated. IV This case illustrates the capital sentencing process gone awry. Relying on factors not mentioned in Florida law and [463 U.S. 939, 991] statutory factors distorted beyond recognition, Judge Olliff overrode the jury's recommendation of life and sentenced petitioner to death. The Florida Supreme Court failed to conduct any meaningful review and instead showered the trial judge with praise for his performance. "Justice of this kind is obviously no less shocking than the crime itself, and the new `official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first." A. Camus, Reflections on the Guillotine 5-6 (R. Howard, trans. 1960). I therefore dissent. [Footnote 1 See Brief for Petitioner 19 (quoting transcript of penalty trial, at 180); Fla. Stat. 921.141(2) (1977) (jury's advisory verdict is based upon its determination of whether sufficient aggravating circumstances exist and whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances). [Footnote 2 The trial judge did not mention the subject of nonstatutory mitigating circumstances. During closing argument at the sentencing trial, petitioner's counsel had contended that such circumstances were present. For example, counsel noted that petitioner was the father of five children and was gainfully employed, and he argued that petitioner was a follower and not a leader among the murderers. He also pointed to the disparity in treatment among the various participants in the crime, three of whom faced punishment for only second-degree murder. The jury's finding that sufficient mitigating circumstances existed which outweighed any aggravating circumstances indicates that the jury found some mitigating circumstances. Cf. Elledge v. State, 346 So.2d 998, 1003 (Fla. 1977). [Footnote 3 See Fla. Stat. 921.141(5) (1977). Since petitioner's trial; and additional aggravating circumstance has been added to the list. See 921.141(5)(i) (1981). [Footnote 4 See Tr. of Oral Arg. 5. [Footnote 5 As the Chairman of the Select Committee on the Death Penalty of the Florida House of Representatives stated during hearings on the 1972 death penalty statute, this aggravating circumstance was intended to apply to cases in which "[t]he defendant knowingly created risk of death to many persons. That's your hijacking sectio[n]." Hearings before the Select Committee on the Death Penalty 66 (Aug. 4, 1972). [Footnote 6 William Hearn, a participant in the murders, testified that the victim asked the other passengers if they smoked marihuana and indicated that he had a friend from whom they could buy some. The victim also engaged in other conversation. See Tr. of Trial 1369-1372. [Footnote 7 See Tr. of Resentencing Hearing 56-83. [Footnote 8 See id., at 61-62. [Footnote 9 See Lewis v. State, 398 So.2d 432 (Fla. 1981); Dobbert v. State, 375 So.2d 1069 (Fla. 1979); Carnes v. State, Nos. 74-2024, 74-2131 (Cir. Ct. 4th Jud. Cir., Duval County, Florida, Nov. 19, 1974), App. to Brief for Petitioner 15a. [Footnote 10 There is only one reported decision in which Judge Olliff did not give a convicted capital felon a death sentence. Hopkins v. State, 418 So.2d 1183 (Fla. App. 1982). In that case, however, the judge attempted to sentence the defendant to a term of 199 years and to reserve review of any [463 U.S. 939, 981] release of the defendant for 66 years, even though such a sentence was not authorized by law. Id., at 1183-1184. The Florida Appellate Court vacated the sentence and remanded for resentencing. [Footnote 11 With respect to the statutory provision that the felony had been committed by a person under a sentence of imprisonment, Judge Olliff's findings were as follows. In Dobbert, the judge concluded that the circumstance applied even though there was no evidence that Dobbert was under sentence of imprisonment at the time of the murder. See 375 So.2d, at 1070. In Carnes, Judge Olliff concluded that although the defendant was not under sentence of imprisonment, the aggravating circumstance nonetheless applied because Carnes was out on bond on another charge at the time of the offense. App. to Brief for Petitioner 32a. In Lewis, the judge correctly concluded that the aggravating circumstance applied. 398 So.2d, at 438. With respect to the statutory circumstance of a prior conviction involving a violent felony, in Lewis Judge Olliff erroneously relied on convictions for breaking and entering. Ibid. In Dobbert, the factor was not mentioned. In Carnes, Judge Olliff found the circumstance applicable even though the defendant had never been convicted of any offense. App. to Brief for Petitioner 33a-34a. As for the creation of a great risk of death to many persons, the Florida Supreme Court concluded that the judge had erred in finding the circumstance applicable in both Lewis, supra, at 438, and Dobbert, supra, at 1070. In Carnes, Judge Olliff found the aggravating circumstance applicable even though there were only two other people present in the house when the defendant shot the victim and both of them were in another room. App. to Brief for Petitioner 34a-36a. [Footnote 12 In Lewis, Judge Olliff wrote: "My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States [463 U.S. 939, 982] Army Paratrooper and served in ground combat in Europe. I have seen death and suffering in almost every conceivable form. "I am not easily shocked or moved by tragedy - but this was an especially heinous, atrocious and cruel crime - and is deserving of no sentence but death." App. to Brief for Petitioner 78a. In Dobbert, Judge Olliff wrote: "`My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have had friends blown to bits and have seen death and suffering in every conceivable form. "`I am not easily shocked or [a]ffected by tragedy or cruelty - but this murder of a helpless, defenseless and innocent [person] is the most cruel, atrocious and heinous crime I have eve[r] personally known of - and it is deserving of no sentence but death.'" Dobbert v. Florida, 432 U.S. 282, 296 , n. 9 (1977). In Carnes, Judge Olliff wrote: "My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have seen friends blown to bits and have seen death and suffering in almost every conceivable form. "I am not easily shocked or moved by tragedy - but this was an especially shocking crime." App. to Brief for Petitioner 43a. [Footnote 13 Thus, in summarizing the trial judge's findings, the Florida Supreme Court stated that "Dougan was not under sentence of imprisonment" and "had not been previously convicted of a major felony." 343 So.2d, at 1271, n. 3. In discussing each of these aggravating circumstances, however, the trial judge had plainly found them applicable. App. 34-35. In contrast, when a circumstance was inapplicable, the trial court was perfectly capable of saying so. For example, in discussing the murder-for-pecuniary-gain factor, 921.141(5)(f), the trial judge stated: "This paragraph does not seem to apply to the present case." App. 41. [Footnote 14 The plurality compounds this distortion by relying on this sentence in the Florida Supreme Court opinion in an effort to cast aside two of the aggravating circumstances that were applied to Barclay. See ante, at 946-947. [Footnote 15 See Tr. of Resentencing Hearing 28 (testimony of Officer Thomas Reeves, supervising investigator for the murder of Stephen Orlando). [Footnote 16 Id., at 6-8. [Footnote 17 The Florida death penalty scheme manifestly differs from that in Georgia, as recently interpreted by the Georgia Supreme Court. See Zant v. Stephens, 462 U.S. 862 (1983). To begin with, Georgia permits the sentencer to rely on nonstatutory aggravating factors so long as at least one valid aggravating circumstance is identified. In addition, the Georgia scheme does not require any weighing of the sufficiency of the statutory aggravating circumstances, nor does it require a weighing of aggravating against mitigating circumstances. [Footnote 18 See also Hopper v. Evans, 456 U.S. 605, 611 (1982); Lockett v. Ohio, 438 U.S. 586, 601 (1978) (plurality opinion) [Footnote 19 Only four Justices agree that our review is limited in this fashion. JUSTICE STEVENS, with whom JUSTICE POWELL joins, would insist on more substantial procedural protections. See ante, at 959-960. [Footnote 20 Because the aggravating factors listed in the Florida statute are exclusive and because the sufficiency of these circumstances must always be weighed, the finding of each statutory aggravating circumstance has special significance under the Florida law, in contrast to the Georgia scheme. See Zant v. Stephens, supra. [Footnote 21 See P. Carrington, D. Meador, & M. Rosenberg, Justice on Appeal 2 (1976); R. Pound, Appellate Procedure in Civil Cases 3-4 (1941). [Footnote 22 See Part II-B, supra. JUSTICE BLACKMUN, dissenting. Like JUSTICE STEVENS, ante, at 974, I cannot "applaud" the procedures and appellate analysis that have led to petitioner's death sentence. Like the Court, however, I cannot "applaud" the undertakings of petitioner and his companions that led to their victim's death in the Jacksonville area that night in June 1974. But when a State chooses to impose capital punishment, as this Court has held a State presently has the right to do, it must be imposed by the rule of law. JUSTICE MARSHALL'S opinion convincingly demonstrates the fragility, in Barclay's case, of the application of Florida's established law. The errors and missteps - intentional or otherwise - come close to making a mockery of the Florida statute and are too much for me to condone. Petitioner Barclay, reprehensible as his conduct may have been, deserves to have a sentencing hearing and appellate review free of such misapplication of law, and in line with the pronouncements of this Court. The final result reached by the Florida courts, and now by this Court, in Barclay's case may well be deserved, but I cannot be convinced of that until the legal process of the case has been cleansed of error that is so substantial. The end does not justify the means even in what may be deemed to be a "deserving" capital punishment situation. I therefore dissent. [463 U.S. 939, 992]

conservative

public_entity

criminal_procedure

1981-172-01

United States Supreme Court ENMUND v. FLORIDA(1982) No. 81-5321 Argued: March 23, 1982Decided: July 2, 1982 Petitioner and a codefendant, at a jury trial in a Florida court, were convicted of first-degree murder and robbery of two elderly persons at their farmhouse, and were sentenced to death. The Florida Supreme Court affirmed. The court held that, although the record supported no more than the inference that petitioner was the person in a car parked by the side of the road near the farmhouse at the time of the killings waiting to help the robbers and killers (the codefendant and another) escape, this was enough under Florida law to make petitioner a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed. It was thus irrelevant to petitioner's challenge to the death sentence that he did not himself kill and was not present at the killings, or whether he intended that the victims be killed or anticipated that lethal force might be used to effectuate the robbery or escape. Held: The imposition of the death penalty upon petitioner is inconsistent with the Eighth and Fourteenth Amendments. Pp. 788-801. (a) The current judgments of legislatures, juries, and prosecutors weigh heavily on the side of rejecting capital punishment for the crime at issue. Only a small minority of States - eight - allow the death penalty to be imposed solely because the defendant somehow participated in the robbery in the course of which a murder was committed, but did not take or attempt or intend to take life, or intend that lethal force be employed. And the evidence is overwhelming that American juries have repudiated imposition of the death penalty for crimes such as petitioner's, the statistics demonstrating that juries - and perhaps prosecutors - consider death a disproportionate penalty for those who fall within petitioner's category. Pp. 788-796. (b) While robbery is a serious crime deserving serious punishment, it is not a crime "so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg v. Georgia, 428 U.S. 153, 184 . The death penalty, which is "unique in its severity and irrevocability," id., at 187, is an excessive penalty for the robber, who, as such, does not take human life. Here, the focus must be on petitioner's culpability, not on those who committed the robbery and killings. He did not kill or intend to kill and thus his culpability is different from that of the robbers who killed, and it is impermissible [458 U.S. 782, 783] for the State to treat them alike and attribute to petitioner the culpability of those who killed the victims. Pp. 797-798. (c) Neither deterrence of capital crimes nor retribution is a sufficient justification for executing petitioner. It is unlikely that the threat of the death penalty for murder will measurably deter one such as petitioner who does not kill or intend to kill. As to retribution, this depends on the degree of petitioner's culpability, which must be limited to his participation in the robbery. Putting him to death to avenge two killings that he did not commit or intend to commit or cause would not measurably contribute to the retribution end of ensuring that the criminal gets his just deserts. Pp. 798-801. 399 So.2d 1362, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 801. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL and REHNQUIST, JJ., joined, post, p. 801. James S. Liebman argued the cause pro hac vice for petitioner. With him on the briefs were William C. McLain, Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, Deborah Fins, and Anthony G. Amsterdam. Lawrence A. Kaden, Assistant Attorney General of Florida, argued the cause pro hac vice for respondent. With him on the brief were Jim Smith, Attorney General, and George R. Georgieff and Raymond L. Marky, Assistant Attorneys General. * [Footnote * Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calio filed a brief for the Washington Legal Foundation as amicus curiae urging affirmance. Robert K. Corbin, Attorney General of Arizona, William J. Schaffer III, and Bruce Ferg, Assistant Attorneys General, filed a brief for the States of Arizona et al. as amici curiae. JUSTICE WHITE delivered the opinion of the Court. I The facts of this case, taken principally from the opinion of the Florida Supreme Court, are as follows. On April 1, [458 U.S. 782, 784] 1975, at approximately 7:45 a. m., Thomas and Eunice Kersey, aged 86 and 74, were robbed and fatally shot at their farmhouse in central Florida. The evidence showed that Sampson and Jeanette Armstrong had gone to the back door of the Kersey house and asked for water for an overheated car. When Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey cried for help, and his wife came out of the house with a gun and shot Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette Armstrong, then shot and killed both of the Kerseys, dragged them into the kitchen, and took their money and fled. Two witnesses testified that they drove past the Kersey house between 7:30 and 7:40 a. m. and saw a large cream- or yellow-colored car parked beside the road about 200 yards from the house and that a man was sitting in the car. Another witness testified that at approximately 6:45 a. m. he saw Ida Jean Shaw, petitioner's common-law wife and Jeanette Armstrong's mother, driving a yellow Buick with a vinyl top which belonged to her and petitioner Earl Enmund. Enmund was a passenger in the car along with an unidentified woman. At about 8 a. m. the same witness saw the car return at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the front seat, and one of the other two people in the car was lying down across the back seat. Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for the first-degree murder and robbery of the Kerseys. Enmund and Sampson Armstrong were tried together. 1 The prosecutor maintained in his closing argument that "Sampson Armstrong killed the old people." Record 1577. The judge instructed the jury that "[t]he killing of a [458 U.S. 782, 785] human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill." App. 6. He went on to instruct them that "[i]n order to sustain a conviction of first degree murder while engaging in the perpetration of or in the attempted perpetration of the crime of robbery, the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery." Id., at 9. The jury found both Enmund and Sampson Armstrong guilty of two counts of first-degree murder and one count of robbery. A separate sentencing hearing was held and the jury recommended the death penalty for both defendants under the Florida procedure whereby the jury advises the trial judge whether to impose the death penalty. See Fla. Stat. 921.141(2) (1981). The trial judge then sentenced Enmund to death on the two counts of first-degree murder. Enmund appealed, and the Florida Supreme Court remanded for written findings as required by Fla. Stat. 921.141 (3) (1981). The trial judge found four statutory aggravating circumstances: the capital felony was committed while Enmund was engaged in or was an accomplice in the commission of an armed robbery, Fla. Stat. 921.141(5)(d) (1981); the capital felony was committed for pecuniary gain, 921.141(5)(f); it was especially heinous, atrocious, or cruel, 921.141(5)(h); and Enmund was previously convicted of a felony involving the use or threat of violence, 921.141(5)(b). 399 So.2d 1362, 1371-1372 (Fla. 1981). The court found that "none of the statutory mitigating circumstances applied" to Enmund and that the aggravating circumstances outweighed the mitigating circumstances. Id., at 1372. Enmund was therefore sentenced to death on each of the murder counts. [458 U.S. 782, 786] The Florida Supreme Court affirmed Enmund's conviction and sentences. It found that "[t]here was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered." Id., at 1370. However, it rejected petitioner's argument that at most he could be found guilty of second-degree murder under Florida's felony-murder rule. The court explained that the interaction of the "`felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon.'" Id., at 1369, quoting Adams v. State, 341 So.2d 765, 768-769 (Fla. 1976), cert. denied, 434 U.S. 878 (1977). Although petitioner could be convicted of second-degree murder only if he were an accessory before the fact rather than a principal, the Florida Supreme Court reasoned: "[T]he only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion of section 782.04(1)(a)." 399 So.2d, at 1370. 2 [458 U.S. 782, 787] The State Supreme Court rejected two of the four statutory aggravating circumstances found by the trial court. It held that the findings that the murders were committed in the course of a robbery and that they were committed for pecuniary gain referred to the same aspect of petitioner's crime and must be treated as only one aggravating circumstance. Id., at 1373. In addition, the court held that "[t]he recited circumstance, that the murders were especially heinous, atrocious, and cruel, cannot be approved." Ibid., citing Armstrong v. State, 399 So.2d 953 (Fla. 1981). 3 However, because there were two aggravating circumstances and no mitigating circumstances, the death sentence was affirmed. In so doing, the court expressly rejected Enmund's submission that because the evidence did not establish that he intended to take life, the death penalty was barred by the Eighth Amendment of the United States Constitution. 399 So.2d, at 1371. We granted Enmund's petition for certiorari, 454 U.S. 939 (1981), presenting the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life. 4 [458 U.S. 782, 788] II As recounted above, the Florida Supreme Court held that the record supported no more than the inference that Enmund was the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape. This was enough under Florida law to make Enmund a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed. It was thus irrelevant to Enmund's challenge to the death sentence that he did not himself kill and was not present at the killings; also beside the point was whether he intended that the Kerseys be killed or anticipated that lethal force would or might be used if necessary to effectuate the robbery or a safe escape. We have concluded that imposition of the death penalty in these circumstances is inconsistent with the Eighth and Fourteenth Amendments. A The Cruel and Unusual Punishments Clause of the Eighth Amendment is directed, in part, "`against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.'" Weems v. United States, 217 U.S. 349, 371 (1910), quoting O'Neil v. Vermont, 144 U.S. 323, 339 -340 (1892) (Field, J., dissenting). This Court most recently held a punishment excessive in relation to the crime charged in Coker v. Georgia, 433 U.S. 584 (1977). There the plurality opinion concluded that the imposition of the death penalty for the rape of an adult woman "is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." Id., at 592. In reaching this conclusion, it was stressed that our judgment "should be informed by objective factors to the maximum possible extent." Ibid. Accordingly, the Court looked to the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made before bringing its [458 U.S. 782, 789] own judgment to bear on the matter. We proceed to analyze the punishment at issue in this case in a similar manner. B The Coker plurality observed that "[a]t no time in the last 50 years have a majority of the States authorized death as a punishment for rape." Id., at 593. More importantly, in reenacting death penalty laws in order to satisfy the criteria established in Furman v. Georgia, 408 U.S. 238 (1972), only three States provided the death penalty for the rape of an adult woman in their revised statutes. 433 U.S., at 594 . The plurality therefore concluded that "[t]he current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman." Id., at 596 (footnote omitted). Thirty-six state and federal jurisdictions presently authorize the death penalty. Of these, only eight jurisdictions authorize imposition of the death penalty solely for participation in a robbery in which another robber takes life. 5 Of the remaining 28 jurisdictions, in 4 felony murder is not a capital crime. 6 Eleven States require some culpable mental state [458 U.S. 782, 790] with respect to the homicide as a prerequisite to conviction of a crime for which the death penalty is authorized. Of these 11 States, 8 make knowing, intentional, purposeful, or premeditated killing an element of capital murder. 7 Three other States require proof of a culpable mental state short of intent, such as recklessness or extreme indifference to human life, before the death penalty may be imposed. 8 In these 11 States, therefore, the actors in a felony murder are not subject to the death penalty without proof of their mental state, proof which was not required with respect to Enmund [458 U.S. 782, 791] either under the trial court's instructions or under the law announced by the Florida Supreme Court. Four additional jurisdictions do not permit a defendant such as Enmund to be put to death. Of these, one State flatly prohibits capital punishment in cases where the defendant did not actually commit murder. 9 Two jurisdictions preclude the death penalty in cases such as this one where the defendant "was a principal in the offense, which was committed by another, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution." 10 One other State limits the death penalty in felony murders to narrow circumstances not involved here. 11 Nine of the remaining States deal with the imposition of the death penalty for a vicarious felony murder in their capital sentencing statutes. In each of these States, a defendant may not be executed solely for participating in a felony in which a person was killed if the defendant did not actually cause the victim's death. For a defendant to be executed in these States, typically the statutory aggravating circumstances which are present must outweigh mitigating factors. To be sure, a vicarious felony murderer may be sentenced to death in these jurisdictions absent an intent to kill if sufficient aggravating circumstances are present. However, six [458 U.S. 782, 792] of these nine States make it a statutory mitigating circumstance that the defendant was an accomplice in a capital felony committed by another person and his participation was relatively minor. 12 By making minimal participation in a capital felony committed by another person a mitigating circumstance, these sentencing statutes reduce the likelihood that a person will be executed for vicarious felony murder. The remaining three jurisdictions exclude felony murder from their lists of aggravating circumstances that will support a death sentence. 13 In each of these nine States, a nontriggerman guilty of felony murder cannot be sentenced to death for the felony murder absent aggravating circumstances above and beyond the felony murder itself. Thus only a small minority of jurisdictions - eight - allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances - which often include the defendant's minimal participation in the murder - only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances. 14 While the current legislative judgment [458 U.S. 782, 793] with respect to imposition of the death penalty where a defendant did not take life, attempt to take it, or intend to take life is neither "wholly unanimous among state legislatures," Coker v. Georgia, 433 U.S., at 596 , nor as compelling as the legislative judgments considered in Coker, it nevertheless weighs on the side of rejecting capital punishment for the crime at issue. 15 [458 U.S. 782, 794] C Society's rejection of the death penalty for accomplice liability in felony murders is also indicated by the sentencing decisions that juries have made. As we have previously observed, "`[t]he jury . . . is a significant and reliable objective index of contemporary values because it is so directly involved.'" Coker v. Georgia, supra, at 596, quoting Gregg v. Georgia, 428 U.S. 153, 181 (1976). The evidence is overwhelming that American juries have repudiated imposition of the death penalty for crimes such as petitioner's. First, according to the petitioner, a search of all reported appellate court decisions since 1954 in cases where a defendant was executed for homicide shows that of the 362 executions, in 339 the person executed personally committed a homicidal assault. 16 In 2 cases the person executed had another person commit the homicide for him, and in 16 cases the facts were not reported in sufficient detail to determine whether the person executed committed the homicide. 17 The survey revealed only 6 cases out of 362 where a nontriggerman felony murderer was executed. All six executions took place in [458 U.S. 782, 795] 1955. By contrast, there were 72 executions for rape in this country between 1955 and this Court's decision in Coker v. Georgia in 1977. 18 That juries have rejected the death penalty in cases such as this one where the defendant did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder is also shown by petitioner's survey of the Nation's death-row population. 19 As of October 1, 1981, there were 796 inmates under sentences of death for homicide. Of the 739 for whom sufficient data are available, only 41 did not participate in the fatal assault on the victim. Of the 40 among the 41 for whom sufficient information was available, only 16 were not physically present when the fatal assault was committed. These 16 prisoners included only 3, including petitioner, who were sentenced to die absent a finding that they hired or solicited someone else to kill the victim or participated in a scheme designed to kill the victim. The figures for Florida are similar. 20 Forty-five felony murderers are currently on death row. The Florida Supreme Court either found or affirmed a trial court or jury finding that the defendant intended life to be taken in 36 cases. In eight cases the courts made no finding with respect to intent, but the defendant was the triggerman in each case. In only one case - Enmund's - there was no finding of an intent to kill and the defendant was not the triggerman. 21 [458 U.S. 782, 796] The State does not challenge this analysis of the Florida cases. The dissent criticizes these statistics on the ground that they do not reveal the percentage of homicides that were charged as felony murders or the percentage of cases where the State sought the death penalty for an accomplice guilty of felony murder. Post, at 818-819. We doubt whether it is possible to gather such information, and at any rate, it would be relevant if prosecutors rarely sought the death penalty for accomplice felony murder, for it would tend to indicate that prosecutors, who represent society's interest in punishing crime, consider the death penalty excessive for accomplice felony murder. The fact remains that we are not aware of a single person convicted of felony murder over the past quarter century who did not kill or attempt to kill, and did not intend the death of the victim, who has been executed, and that only three persons in that category are presently sentenced to die. Nor can these figures be discounted by attributing to petitioner the argument that "death is an unconstitutional penalty absent an intent to kill," post, at 819, and observing that the statistics are incomplete with respect to intent. Petitioner's argument is that because he did not kill, attempt to kill, and he did not intend to kill, the death penalty is disproportionate as applied to him, and the statistics he cites are adequately tailored to demonstrate that juries - and perhaps prosecutors as well - consider death a disproportionate penalty for those who fall within his category. 22 [458 U.S. 782, 797] III Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not. We have no doubt that robbery is a serious crime deserving serious punishment. It is not, however, a crime "so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg v. Georgia, 428 U.S., at 184 (footnote omitted). "[I]t does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, [robbery] by definition does not include the death of or even the serious injury to another person. The murderer kills; the [robber], if no more than that, does not. Life is over for the victim of the murderer; for the [robbery] victim, life . . . is not over and normally is not beyond repair." Coker v. Georgia, 433 U.S., at 598 (footnote omitted). As was said of the crime of rape in Coker, we have the abiding conviction that the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, supra, at 187, is an excessive penalty for the robber who, as such, does not take human life. [458 U.S. 782, 798] Here the robbers did commit murder; but they were subjected to the death penalty only because they killed as well as robbed. The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund's own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on "individualized consideration as a constitutional requirement in imposing the death sentence," Lockett v. Ohio, 438 U.S. 586, 605 (1978) (footnote omitted), which means that we must focus on "relevant facets of the character and record of the individual offender." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Enmund himself did not kill or attempt to kill; and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida law death was an authorized penalty because Enmund aided and abetted a robbery in the course of which murder was committed. It is fundamental that "causing harm intentionally must be punished more severely than causing the same harm unintentionally." H. Hart, Punishment and Responsibility 162 (1968). Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment. In Gregg v. Georgia the opinion announcing the judgment observed that "[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." 428 U.S., at 183 (footnote omitted). Unless the death penalty when applied to those in Enmund's position measurably contributes to one or both of these goals, it "is nothing more than the purposeless and needless imposition of pain and suffering," and hence an unconstitutional punishment. Coker v. Georgia, supra, at 592. We are quite unconvinced, however, that the threat [458 U.S. 782, 799] that the death penalty will be imposed for murder will measurably deter one who does not kill and has no intention or purpose that life will be taken. Instead, it seems likely that "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation," Fisher v. United States, 328 U.S. 463, 484 (1946) (Frankfurter, J., dissenting), for if a person does not intend that life be taken or contemplate that lethal force will be employed by others, the possibility that the death penalty will be imposed for vicarious felony murder will not "enter into the cold calculus that precedes the decision to act." Gregg v. Georgia, supra, at 186 (footnote omitted). It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. But competent observers have concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself. Model Penal Code 210.2, Comment, p. 38, and n. 96. This conclusion was based on three comparisons of robbery statistics, each of which showed that only about one-half of one percent of robberies resulted in homicide. 23 The most recent national [458 U.S. 782, 800] crime statistics strongly support this conclusion. 24 In addition to the evidence that killings only rarely occur during robberies is the fact, already noted, that however often death occurs in the course of a felony such as robbery, the death penalty is rarely imposed on one only vicariously guilty of the murder, a fact which further attenuates its possible utility as an effective deterrence. As for retribution as a justification for executing Enmund, we think this very much depends on the degree of Enmund's culpability - what Enmund's intentions, expectations, and actions were. American criminal law has long considered a defendant's intention - and therefore his moral guilt - to be critical to "the degree of [his] criminal culpability," Mullaney v. Wilbur, 421 U.S. 684, 698 (1975), and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing. In Robinson v. California, 370 U.S. 660, 667 (1962), a statute making narcotics addiction a crime, even though such addiction "is apparently an illness which may be contracted innocently or involuntarily," was struck down under the Eighth Amendment. Similarly, in Weems v. United States, the Court invalidated a statute making it a crime for a public official to make a false entry in a public record but not requiring the offender to "injur[e] any one by his act or inten[d] to injure any one." 217 U.S., at 363 . The Court employed a similar approach in Godfrey v. Georgia, 446 U.S. 420, 433 (1980), reversing a death sentence based on the existence of an aggravating circumstance because the defendant's crime did not reflect "a consciousness [458 U.S. 782, 801] materially more `depraved' than that of any person guilty of murder." For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment. IV Because the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty and remand for further proceedings not inconsistent with this opinion. So ordered. Footnotes [Footnote 1 Jeanette Armstrong's trial was severed and she was convicted of two counts of second-degree murder and one count of robbery and sentenced to three consecutive life sentences. 399 So.2d 1362, 1371 (Fla. 1981). [Footnote 2 The Florida Supreme Court's understanding of the evidence differed sharply from that of the trial court with respect to the degree of Enmund's participation. In its sentencing findings, the trial court concluded that Enmund was a major participant in the robbery because he planned the robbery in advance and himself shot the Kerseys. 399 So.2d, at 1372. Both of these findings, as we understand it, were rejected by the Florida Supreme Court's holding that the only supportable inference with respect to Enmund's participation was that he drove the getaway car. The dissent, while conceding that this holding negated the finding that Enmund [458 U.S. 782, 787] was one of the triggermen, argues that the trial court's finding that Enmund planned the robbery was implicitly affirmed. Post, at 809. As we have said, we disagree with that view. In any event, the question is irrelevant to the constitutional issue before us, since the Florida Supreme Court held that driving the escape car was enough to warrant conviction and the death penalty, whether or not Enmund intended that life be taken or anticipated that lethal force would be used. [Footnote 3 In Armstrong the Florida Supreme Court rejected the trial court's conclusion that the Kerseys had been killed in order to eliminate them as witnesses, and stated that according to the only direct account of the events, "the shootings were indeed spontaneous and were precipitated by the armed resistance of Mrs. Kersey." 399 So.2d, at 963. [Footnote 4 The petitioner argues a second question: whether the degree of Enmund's participation in the killings was given the consideration required by the Eighth and Fourteenth Amendments. We need not deal with this question. [Footnote 5 Cal. Penal Code Ann. 189, 190.2(a)(17) (West Supp. 1982); Fla. Stat. 782.04(1)(a), 775.082(1), 921.141(5)(d) (1981); Ga. Code 26-1101(b), (c), 27-2534.1(b)(2) (1978); Miss. Code Ann. 97-3-19(2)(e), 99-19-101 (5)(d) (Supp. 1981); Nev. Rev. Stat. 200.030(1)(b), 200.030 (4), 200.033(4) (1981); S. C. Code 16-3-10, 16-3-20(C)(a)(1) (1976 and Supp. 1981); Tenn. Code Ann. 39-2402(a), 39-2404(i)(7) (Supp. 1981); Wyo. Stat. 6-4-101, 6-4-102(h)(iv) (1977). [Footnote 6 Mo. Rev. Stat. 565.001, 565.003, 565.008(2) (1978) (death penalty may be imposed only for capital murder; felony murder is first-degree murder); N. H. Rev. Stat. Ann. 630:1, 630:1(III), 630:1-a(I)(b)(2) (1974 and Supp. 1981) (capital murder includes only killing a law enforcement officer, killing during a kidnaping, and murder for hire); 18 Pa. Cons. Stat. 2502(a), (b), 1102 (1980) (death penalty may be imposed only for first-degree murder; felony murder is second-degree murder); Wash. Rev. Code 9A.32.030, 10.95.020 (1981) (death penalty may be imposed only for premeditated killing). [Footnote 7 Ala. Code 13A-2-23, 13A-5-40(a)(2), 13A-6-2(a)(1) (1977 and Supp. 1982) (to be found guilty of capital murder, accomplice must have had "intent to promote or assist the commission of the offense" and murder must be intentional); Ill. Rev. Stat., ch. 38, §§ 9-1(a)(3), 9-1(b)(6) (1979) (capital crime only if defendant killed intentionally or with knowledge that his actions "created a strong probability of death or great bodily harm"); La. Rev. Stat. Ann. 14:30(1) (West Supp. 1982) ("specific intent to kill"); N. M. Stat. Ann. 30-2-1(A)(2), 31-20A-5 (Supp. 1981) (felony murder is a capital crime but death penalty may not be imposed absent intent to kill unless victim was a peace officer); Ohio Rev. Code Ann. 2903.01 (B), (C), (D), 2929.02(A), 2929.04(A)(7) (1982) (accomplice not guilty of capital murder unless he intended to kill); Tex. Penal Code Ann. 19.02(a), 19.03(a)(2) (1974) ("intentionally commits the murder in the course of [a felony]"); Utah Code Ann. 76-5-202(1) (1978) ("intentionally or knowingly causes the death of another"); Va. Code 18.2-31(d) (1982) ("willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon"). [Footnote 8 Ark. Stat. Ann. 41-1501(1)(a) (1977) ("extreme indifference to . . . life"); see also 41-1501, Commentary ("an inadvertent killing in the course of a felony will not . . . support . . . a conviction entailing punishment by death"); Del. Code Ann., Tit. 11, 636(a)(2), (6) (1979) ("recklessly" or "with criminal negligence" causes death during the commission of a felony); Ky. Rev. Stat. 507.020(1)(b) (Supp. 1980) (defendant must manifest "extreme indifference to human life" and "wantonly engag[e] in conduct which creates a grave risk of death . . . and thereby causes . . . death"); see also Commentary following Criminal Law of Kentucky Annotated, Penal Code 507.020, p. 677 (1978) (each accomplice's "participation in [the] felony" must "constitut[e] wantonness manifesting extreme indifference to human life"). [Footnote 9 Md. Code Ann., Art. 27, 410, 412(b), 413(d)(10), 413(e)(1) (1982) (except in cases of murder for hire, only principal in the first degree subject to the death penalty). In addition, two jurisdictions already accounted for in n. 7, supra, also preclude the death penalty where the defendant did not commit the murder. Ill. Rev. Stat., ch. 38, §§ 9-1(a)(3), 9-1(b)(6) (1979) (defendant must actually kill victim); Va. Code 18.2-31 (d), 18.2-10(a), 18.2-18 (1982) (except in cases of murder for hire, only principal in the first degree may be tried for capital murder). [Footnote 10 Colo. Rev. Stat. 16-11-103(5)(d) (1978); 49 U.S.C. 1473(c) (6)(D) (same). [Footnote 11 Vt. Stat. Ann., Tit. 13, 2303(b), (c) (Supp. 1981) (capital murder reserved for offenders who commit a second unrelated murder or murder of a correctional officer). [Footnote 12 Ariz. Rev. Stat. Ann. 13-703(G)(3) (Supp. 1981-1982) ("relatively minor" participation); Conn. Gen. Stat. 53a-46a(f)(4) (Supp. 1982) (same); Ind. Code 35-50-2-9(c)(4) (Supp. 1981) (same); Mont. Code Ann. 46-18-304(6) (1981) (same); Neb. Rev. Stat. 29-2523(2)(e) (1979) (same); N.C. Gen. Stat. 15A-2000(f)(4) (Supp. 1981) (same). [Footnote 13 Idaho Code 19-2515(f) (1979); Okla. Stat., Tit. 21, 701.12 (1981); S. D. Comp. Laws Ann. 23A-27A-1 (Supp. 1981). [Footnote 14 See the Ala., Colo., Conn., Md., Ohio, Pa., S. D., and Wash. statutes cited in nn. 5-7, 9, 10, 12, and 13, supra. [Footnote 15 The dissent characterizes the state statutes somewhat differently. It begins by noting that 31 States "authorize a sentencer to impose a death sentence for a death that occurs during the course of a robbery." Post, at 819. That is not relevant to this case, however. Rather, at issue is the number of States which authorize the death penalty where the defendant did not kill, attempt to kill, or intend to kill. The dissent divides the statutes into three categories. Its first category of 20 statutes include 8 about which there is no disagreement - Cal., Fla., Ga., Miss., Nev., S. C., Tenn., and Wyo. In 11 other States listed by the dissent - Ariz., Colo., Conn., Idaho, Ind., Mont., Neb., N. M., N.C., Okla., and S. D. - the dissent looks solely at the provisions defining the crime of capital murder. Colorado's capital sentencing statute makes a defendant's minimal participation in a murder an absolute defense to imposition of the death penalty. See n. 10, supra. Contrary to the dissent's claim that this provision would have been of no help to petitioner, see post, at 820, n. 36, if the case is judged on the basis of the Florida Supreme Court's findings, see n. 2, supra, Colorado law may well have barred imposition of the death penalty in this case. Similarly, the Ariz., Conn., Ind., Mont., Neb., and N.C. capital sentencing statutes do not permit capital punishment solely for vicarious felony murder and reduce the likelihood that the death penalty will be imposed on a vicarious felony murderer, even where aggravating circumstances are present, by making a defendant's minimal participation in the homicide a mitigating circumstance. See n. 12, supra. Three other States - Idaho, Okla., and S. D. - allow a defendant who does not intend to kill or actually kill to be executed only where other aggravating circumstances are present, and in those States the felony murder itself cannot serve as an aggravating circumstance. See n. 13, supra. New Mexico's capital sentencing statute requires the jury to find at least one statutory aggravating circumstance before the death penalty may be imposed, and in addition aggravating circumstances must outweigh mitigating circumstances. N. M. Stat. Ann. 31-20A-4(C)(1) and (2) (Supp. 1981). The statute lists seven statutory aggravating circumstances, six of which require an intent to kill. 31-20A-5(B)-(G). The only aggravating circumstance which does not [458 U.S. 782, 794] include an intent element is not applicable here, for it requires that the victim must be "a peace officer who was acting in the lawful discharge of an official duty when he was murdered." 31-20A-5(A). The remaining State, Vermont, limits the death penalty to narrow circumstances not present here. See n. 11, supra. There is no disagreement that three States require a culpable mental state short of intent before a nontriggerman may be put to death, compare n. 8, supra, with post, at 821, n. 37, a mental state which Enmund was not proved to possess. Similarly, the dissent's second category of seven States which authorize the death penalty only if the defendant had specific intent to kill the victim differs from our group of specific-intent States only because we include New Mexico in that group. Compare n. 7, supra, with post, at 821-822, n. 38. Finally, there is no disagreement that three States restrict application of the death penalty to felony murderers who actually kill. Compare n. 9, supra, with post, at 822, n. 39. [Footnote 16 See App. D to Brief for Petitioner. [Footnote 17 There is no reason to believe that this group of 16 contains a higher proportion of nontriggermen than does the rest of the defendants studied. [Footnote 18 See NAACP Legal Defense and Educational Fund, Inc., Death Row U.S. A. 1, n. * (Oct. 20, 1981). [Footnote 19 See App. E to Brief for Petitioner; NAACP Legal Defense and Educational Fund, Inc., Death Row U.S. A. (Oct. 20, 1981). [Footnote 20 See App. to Reply Brief for Petitioner A-1 - A-7. [Footnote 21 These statistics concerning the number of vicarious felony murderers who have been executed and the number of them on death row are consistent with the findings of a study of 111 cases in which the defendant was found guilty of a capital crime and hence could have received the death penalty. Kalven & Zeisel, The American Jury and the Death Penalty, 33 U. Chi. L. Rev. 769 (1966). The authors found that juries rebel "at imposing the death penalty for the vicarious criminal responsibility of the defendant," [458 U.S. 782, 796] id., at 776, to the extent that felony murder and accomplice factors accounted for more jury decisions not to impose the death penalty when the trial judge decided to impose the death penalty than any other factor. Id., at 777. The authors had anticipated that "because of the rigidity of the felony murder rule, the jury's sense of equity would produce a broad area of disagreement." Id., at 776, n. 10. However, they found that "disagreement over the rule emerges only at the level of the death penalty." Ibid. [Footnote 22 "[T]he climate of international opinion concerning the acceptability of a particular punishment" is an additional consideration which is "not irrelevant." Coker v. Georgia, 433 U.S. 584, 596 , n. 10 (1977). It is thus [458 U.S. 782, 797] worth noting that the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe. ALI, Model Penal Code 210.2, pp. 39-40 (Off. Draft and Revised Comments 1980) (hereafter Model Penal Code). It is also relevant that death sentences have not infrequently been commuted to terms of imprisonment on the grounds of the defendant's lack of premeditation and limited participation in the homicidal act. See Wolfgang, Kelly, & Nolde, Comparison of the Executed and Commuted Among Admissions to Death Row, 53 J. Crim. L. C. & P. S. 301, 310 (1962). [Footnote 23 The statistics relied upon by the American Law Institute may be summarized as follows: Robberies Date & No. of Accompanied Location Robberies by Homicide % ---------------------------------------------------------------------- Cook County, Ill. 14,392 (est.) 71 .49 1926-1927 Philadelphia, Pa. 6,432 38 .59 1948-1952 New Jersey 16,273 66 .41 1975 Model Penal Code 210.2, Comment, p. 38, n. 96. [Footnote 24 An estimated total of 548,809 robberies occurred in the United States in 1980. U.S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports 17 (1981). Approximately 2,361 persons were murdered in the United States in 1980 in connection with robberies, id., at 13, and thus only about 0.43% of robberies in the United States in 1980 resulted in homicide. See also Cook, The Effect of Gun Availability on Robbery and Robbery Murder, in 3 R. Haveman & B. Zellner, Policy Studies Review Annual 743, 747 (1980) (0.48% of all robberies result in murder). JUSTICE BRENNAN, concurring. I join the Court's opinion. However, I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 227 (1976) (dissenting opinion). JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting. Today the Court holds that the Eighth Amendment prohibits a State from executing a convicted felony murderer. I dissent from this holding not only because I believe that it is not supported by the analysis in our previous cases, but also [458 U.S. 782, 802] because today's holding interferes with state criteria for assessing legal guilt by recasting intent as a matter of federal constitutional law. I The evidence at trial showed that at approximately 7:30 a. m. on April 1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas and Eunice Kersey's farmhouse on the pretext of obtaining water for their overheated car. 1 When Thomas Kersey retrieved a water jug to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him, and told Jeanette Armstrong to take his wallet. Hearing her husband's cries for help, Eunice Kersey came around the side of the house with a gun and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette Armstrong, returned the fire, killing both of the Kerseys. 2 The Armstrongs dragged the bodies into the kitchen, took Thomas Kersey's money, and fled to a nearby car, where the petitioner, Earl Enmund, was waiting to help the Armstrongs escape. Record 1348-1351. 3 Ida Jean Shaw 4 testified that on March 31 the petitioner and the two Armstrongs were staying at her house. When she awoke on April 1, the day of the murders, the petitioner, [458 U.S. 782, 803] Jeanette, and Sampson, as well as Shaw's 1969 yellow Buick, were gone. Id., at 1185-1186. A little after eight o'clock, either the petitioner or Sampson Armstrong entered the house and told her that Jeanette had been shot. Id., at 1187-1188. After learning that Jeanette had been shot during a robbery, Shaw asked the petitioner "[w]hy he did it." Enmund answered that he had decided to rob Thomas Kersey after he had seen Kersey's money a few weeks earlier. Id., at 1205. 5 At the same time, Sampson Armstrong volunteered that he had made sure that the Kerseys were dead. Id., at 1207-1208. Ida Jean Shaw also testified that, pursuant to the petitioner's and Sampson Armstrong's instructions, she had disposed of a .22-caliber pistol that she normally kept in her car, as well as a .38-caliber pistol belonging to the Armstrongs. Id., at 1198-1202. The murder weapons were never recovered. 6 In his closing argument, the prosecutor did not argue that Earl Enmund had killed the Kerseys. Instead, he maintained that the petitioner had initiated and planned the [458 U.S. 782, 804] armed robbery, and was in the car during the killings. According to the prosecutor, "Sampson Armstrong killed the old people." Id., at 1577. 7 After deliberating for four hours, the jury found Sampson Armstrong and the petitioner each guilty of two counts of first-degree murder 8 and one count of robbery. 9 The jury [458 U.S. 782, 805] then heard evidence pertaining to the appropriate sentence for the two defendants, and recommended the death penalty for each defendant on each of the murder counts. 10 In its sentencing findings, 11 the trial court found four statutory aggravating circumstances regarding the petitioner's involvement in the murder: (1) the petitioner previously had been convicted of a felony involving the use of violence (an armed robbery in 1957), Fla. Stat. 921.141(5)(b) (1981); (2) the murders were committed during the course of a robbery, 921.141(5)(d); (3) the murders were committed for pecuniary gain, 921.141(5)(f); and (4) the murders were especially heinous, atrocious, or cruel because the Kerseys had been shot in a prone position in an effort to eliminate them as witnesses, 921.141(5)(h). App. 30-31; 399 So.2d 1362, 1371-1372 (Fla. 1981). 12 [458 U.S. 782, 806] The trial court also found that "none of the statutory mitigating circumstances applied" to the petitioner. App. 32 (emphasis in original). Most notably, the court concluded that the evidence clearly showed that the petitioner was an accomplice to the capital felony and that his participation had not been "relatively minor," but had been major in that he "planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons." Ibid.; 399 So.2d, at 1373. See Fla. Stat. 921.141(6)(d) (1981). 13 Considering these factors, the trial court concluded that the "aggravating circumstances of these capital felonies outweigh the mitigating circumstances," and imposed the death penalty for each count of murder. App. 32; 399 So.2d, at 1373. The court sentenced the petitioner to life imprisonment for the robbery. App. 28. 14 [458 U.S. 782, 807] On appeal, the Florida Supreme Court affirmed the petitioner's convictions and sentences. 15 In challenging his convictions for first-degree murder, the petitioner claimed that there was no evidence that he had committed premeditated murder, or that he had been present aiding and abetting the robbery when the Kerseys were shot. He argued that since the jury properly could have concluded only that he was in the car on the highway when the murders were committed, he could be found guilty at most of second-degree murder under the State's felony-murder rule. 16 The court rejected this argument. Quoting from an earlier case, the Florida Supreme Court held: "`[A]n individual who personally kills another during the perpetration or attempt to perpetrate one of the enumerated felonies is guilty of first degree murder. . . . Moreover, the felon's liability for first degree murder extends to all of his co-felons who are personally present. As perpetrators of the underlying felony, they are principals in the homicide. In Florida, as in the majority of jurisdictions, the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon. Only if the felon is an accessory before the fact and not personally present does liability attach under the second degree murder provision of the applicable statute in the instant case.'" 399 So.2d, at 1369 (quoting Adams v. State, 341 So.2d 765, 768-769 (Fla. 1976) (footnote omitted), cert. denied, 434 U.S. 878 (1977)). [458 U.S. 782, 808] Consequently, the critical issue regarding liability was whether the petitioner's conduct would make him a principal or merely an accessory before the fact to the underlying robbery. Under Florida law at the time of the murders, "if the accused was present aiding and abetting the commission or attempt of one of the violent felonies listed in the first-degree murder statute, he is equally guilty, with the actual perpetrator of the underlying felony, of first-degree murder." 399 So.2d, at 1370. Moreover, "`the presence of the aider and abetter need not have been actual, but it is sufficient if he was constructively present, provided the aider, pursuant to a previous understanding, is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator in committing the felonious act or in escaping after its commission.'" Ibid. (quoting Pope v. State, 84 Fla. 428, 446, 94 So. 865, 871 (1922)). The court noted that there "was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered." 399 So.2d, at 1370. 17 Instead, "the only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money." Ibid. This evidence, the court concluded, was sufficient to find the petitioner to be a principal under state law, "constructively present aiding and abetting the commission of the crime of robbery," and thus guilty of first-degree murder. Ibid. [458 U.S. 782, 809] Turning to the trial court's written sentencing findings, the State Supreme Court rejected two of the four aggravating circumstances. First, the court held that two of the trial judge's findings - that the murders were committed both in the course of robbery and for pecuniary gain - referred to the same aspect of the petitioner's crime. Consequently, these facts supported only one aggravating circumstance. Second, citing Armstrong v. State, 399 So.2d 953 (Fla. 1981), the court held that "[t]he recited circumstance, that the murders were especially heinous, atrocious, and cruel, cannot be approved." 399 So.2d, at 1373. 18 The court affirmed the trial court's findings that none of the statutory mitigating circumstances applied. Ibid. Because one of those findings was that Enmund's participation in the capital felony was not minor, due to his role in planning the robbery, the State Supreme Court implicitly affirmed the finding that Enmund had planned the robbery. Regarding the petitioner's claim that imposition of the death penalty, absent a showing that he intended to kill, would violate the Eighth Amendment's ban on cruel and unusual punishments, the court simply stated that the petitioner "offers us no binding legal authority that directly supports this proposition, and we therefore reject it." Id., at 1371. [458 U.S. 782, 810] II Earl Enmund's claim in this Court is that the death sentence imposed by the Florida trial court, and affirmed by the Florida Supreme Court, is unconstitutionally disproportionate to the role he played in the robbery and murders of the Kerseys. 19 In particular, he contends that because he had no actual intent to kill the victims - in effect, because his behavior and intent were no more blameworthy than that of any robber - capital punishment is too extreme a penalty. 20 In Gregg v. Georgia, 428 U.S. 153 (1976), a majority of this Court concluded that the death penalty does not invariably violate the Cruel and Unusual Punishments Clause of the Eighth Amendment. 21 See id., at 187 (opinion of Stewart, POWELL, and STEVENS, JJ.) ("[W]hen a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes") (footnote omitted); id., at 226 (opinion of WHITE, J.) (rejecting the argument that "the death penalty, however imposed and for whatever crime, is cruel and unusual punishment"); [458 U.S. 782, 811] id., at 227 (BLACKMUN, J., concurring in judgment). In no case since Gregg and its companion cases, 22 has this Court retreated from that position. 23 Recognizing the constitutionality [458 U.S. 782, 812] of the death penalty, however, only marks the beginning of the inquiry, for Earl Enmund was not convicted of murder as it is ordinarily envisioned - a deliberate and premeditated, unlawful killing. Rather, through the doctrine of accessorial liability, the petitioner has been convicted of two murders that he did not specifically intend. 24 Thus, it is necessary to examine the concept of proportionality as enunciated in this Court's cases to determine whether the penalty imposed on Earl Enmund is unconstitutionally disproportionate to his crimes. A The Eighth Amendment concept of proportionality was first fully expressed in Weems v. United States, 217 U.S. 349 (1910). In that case, defendant Weems was sentenced to 15 years at hard labor for falsifying a public document. [458 U.S. 782, 813] After remarking that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense," id., at 367, and after comparing Weems' punishment to the punishments for other crimes, the Court concluded that the sentence was cruel and unusual. Id., at 381. Not until two-thirds of a century later, in Coker v. Georgia, 433 U.S. 584 (1977), did the Court declare another punishment to be unconstitutionally disproportionate to the crime. Writing for himself and three other Members of the Court, JUSTICE WHITE concluded that death is a disproportionate penalty for the crime of raping an adult woman. Id., at 597. 25 In reaching this conclusion, the plurality was careful to inform its judgment "by objective factors to the maximum possible extent [by giving attention] to the public attitudes concerning a particular sentence - history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions." Id., at 592. The plurality's resort to objective factors was no doubt an effort to derive "from the evolving standards of decency that mark the progress of a maturing society" the meaning of the requirement of proportionality contained within the Eighth Amendment. Trop v. Dulles, 356 U.S. 86, 101 (1958) (opinion of Warren, C. J.). The plurality noted that within the previous 50 years a majority of the States had never authorized death as a punishment for rape. More significantly to the plurality, only 3 of the 35 States that immediately reinstituted the death penalty following the Court's judgment in Furman v. Georgia, 408 U.S. 238 (1972) (invalidating nearly all state capital punishment [458 U.S. 782, 814] statutes), defined rape as a capital offense. 26 The plurality also considered "the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried." 433 U.S., at 596 . See Gregg v. Georgia, 428 U.S., at 181 (opinion of Stewart, POWELL, and STEVENS, JJ.) ("The jury also is a significant and reliable objective index of contemporary values because it is so directly involved"). From the available data, the plurality concluded that in at least 90% of the rape convictions since 1973, juries in Georgia had declined to impose the death penalty. 433 U.S., at 597 . Thus, the conclusion reached in Coker rested in part on the Court's observation that both legislatures and juries firmly rejected the penalty of death for the crime of rape. See Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.) (concluding that the State's mandatory death penalty statute violates the Eighth Amendment because the "two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society - jury determinations and legislative enactments - both point conclusively to the repudiation of automatic death sentences"). In addition to ascertaining "contemporary standards," the plurality opinion also considered qualitative factors bearing on the question whether the death penalty was disproportionate, for "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." 433 U.S., at 597 . The plurality acknowledged that a rapist is almost as blameworthy as a murderer, describing [458 U.S. 782, 815] the crime of rape as "highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim." Ibid. Despite the enormity of the crime of rape, however, the Court concluded that the death penalty was "grossly out of proportion to the severity of the crime," id., at 592, in part because the harm caused by a rape "does not compare with murder, which does involve the unjustified taking of human life." Id., at 598. Coker teaches, therefore, that proportionality - at least as regards capital punishment - not only requires an inquiry into contemporary standards as expressed by legislators and jurors, but also involves the notion that the magnitude of the punishment imposed must be related to the degree of the harm inflicted on the victim, as well as to the degree of the defendant's blameworthiness. 27 Moreover, because they turn on considerations unique to each defendant's case, these latter factors underlying the concept of proportionality are reflected in this Court's conclusion in Lockett v. Ohio, 438 U.S. 586, 605 (1978), that "individualized consideration [is] a constitutional requirement in imposing the death sentence" (opinion of BURGER, C. J.) (footnote omitted). See id., at 613 (opinion of BLACKMUN, J.) ("the Ohio judgment in this case improperly provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide"). [458 U.S. 782, 816] In sum, in considering the petitioner's challenge, the Court should decide not only whether the petitioner's sentence of death offends contemporary standards as reflected in the responses of legislatures and juries, but also whether it is disproportionate to the harm that the petitioner caused and to the petitioner's involvement in the crime, as well as whether the procedures under which the petitioner was sentenced satisfied the constitutional requirement of individualized consideration set forth in Lockett. B Following the analysis set forth in Coker, the petitioner examines the historical development of the felony-murder rule, as well as contemporary legislation and jury verdicts in capital cases, in an effort to show that imposition of the death penalty on him would violate the Eighth Amendment. This effort fails, however, for the available data do not show that society has rejected conclusively the death penalty for felony murderers. As the petitioner acknowledges, the felony-murder doctrine, and its corresponding capital penalty, originated hundreds of years ago, 28 and was a fixture of English common law until 1957 when Parliament declared that an unintentional killing during a felony would be classified as manslaughter. 29 The common-law rule was transplanted to the American Colonies, [458 U.S. 782, 817] and its use continued largely unabated into the 20th century, although legislative reforms often restricted capital felony murder to enumerated violent felonies. 30 The petitioner discounts the weight of this historical precedent by arguing that jurors and judges widely resisted the application of capital punishment by acquitting defendants in felony-murder cases or by convicting them of noncapital manslaughter. 31 The force of the petitioner's argument is speculative at best, however, for it is unclear what fraction of the jury nullification in this country resulted from dissatisfaction with the capital felony-murder rule. Much of it, surely, was a reaction to the mandatory death penalty, and the failure of the common law and early state statutes to classify murder by degree. In fact, it was in response to juror attitudes toward capital punishment that most jurisdictions by the early part of this century replaced their mandatory death penalty statutes with statutes allowing juries the discretion to decide whether to impose or to recommend the death penalty. See Woodson v. North Carolina, 428 U.S., at 291 -292 (opinion of Stewart, POWELL, and STEVENS, JJ.). 32 Thus, it simply is not possible to conclude that historically [458 U.S. 782, 818] this country conclusively has rejected capital punishment for homicides committed during the course of a felony. The petitioner and the Court turn to jury verdicts in an effort to show that, by present standards at least, capital punishment is grossly out of proportion to the crimes that the petitioner committed. Surveying all reported appellate court opinions since 1954 involving executions, the petitioner has found that of the 362 individuals executed for homicide, 339 personally committed the homicidal assault, and two others each had another person commit the homicide on his behalf. Only six persons executed were "non-triggermen." 33 A similar trend can be seen in the petitioner's survey of the current death row population. 34 Of the 739 prisoners for whom sufficient data are available, only 40 did not participate in the homicidal assault, and of those, only 3 (including the petitioner) were sentenced to death absent a finding that they had collaborated with the killer in a specific plan to kill. Brief for Petitioner 35-36. See also App. to Reply Brief for Petitioner (showing that of the 45 felony murderers currently on death row in Florida, 36 were found by the State Supreme Court or a trial court to have had the intent to kill; in 8 cases, the state courts made no finding, but the defendant was the triggerman; and in 1, the petitioner's case, the defendant was not the triggerman, and there was no finding of intent to kill). Impressive as these statistics are at first glance, they cannot be accepted uncritically. So stated, the data do not reveal the number or fraction of homicides that were charged as felony murders, or the number or fraction of cases in which the State sought the death penalty for an accomplice guilty of [458 U.S. 782, 819] felony murder. Consequently, we cannot know the fraction of cases in which juries rejected the death penalty for accomplice felony murder. Moreover, as JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett v. Ohio, 438 U.S., at 615 , n. 2, many of these data classify defendants by whether they "personally committed a homicidal assault," and do not show the fraction of capital defendants who were shown to have an intent to kill. While the petitioner relies on the fact that he did not pull the trigger, his principal argument is, and must be, that death is an unconstitutional penalty absent an intent to kill, for otherwise defendants who hire others to kill would escape the death penalty. See n. 20, supra, Thus, the data he presents are not entirely relevant. Even accepting the petitioner's facts as meaningful, they may only reflect that sentencers are especially cautious in imposing the death penalty, and reserve that punishment for those defendants who are sufficiently involved in the homicide, whether or not there was specific intent to kill. Finally, as the petitioner acknowledges, the jury verdict statistics cannot be viewed in isolation from state death penalty legislation. The petitioner and the Court therefore review recent legislation in order to support the conclusion that society has rejected capital felony murder. Of the 35 States that presently have a death penalty, however, fully 31 authorize a sentencer to impose a death sentence for a death that occurs during the course of a robbery. 35 The States are not uniform in delimiting the circumstances under which the [458 U.S. 782, 820] death penalty may be imposed for felony murder, but each state statute can be classified as one of three types. The first category, containing 20 statutes, includes those States that permit imposition of the death penalty for felony murder even though the defendant did not commit the homicidal act, and even though he had no actual intent to kill. 36 Three additional [458 U.S. 782, 821] States, while requiring some finding of intent, do not require the intent to kill that the petitioner believes is constitutionally mandated before the death sentence may be imposed. 37 The second category, containing seven statutes, includes those States that authorize the death penalty only if the defendant had the specific intent (or some rough equivalent) to kill the victim. 38 The third class of statutes, from [458 U.S. 782, 822] only three States, restricts application of the death penalty to those felony murderers who actually commit the homicide. 39 The Court's curious method of counting the States that authorize imposition of the death penalty for felony murder cannot hide the fact that 23 States permit a sentencer to impose the death penalty even though the felony murderer has neither killed nor intended to kill his victim. While the Court acknowledges that eight state statutes follow the Florida death penalty scheme, see ante, at 789, n. 5, it also concedes that 15 other statutes permit imposition of the death penalty where the defendant neither intended to kill or actually killed the victims. See ante, at 790, n. 8 (Arkansas, Delaware, and Kentucky); ante, at 793-794, n. 15 (New Mexico); ante, at 791, n. 10 (Colorado); ante, at 791, n. 11 (Vermont); ante, [458 U.S. 782, 823] at 792, n. 12 (Arizona, Connecticut, Indiana, Montana, Nebraska, and North Carolina); ante, at 792, n. 13 (Idaho, Oklahoma, and South Dakota). Not all of the statutes list the same aggravating circumstances. Nevertheless, the question before the Court is not whether a particular species of death penalty statute is unconstitutional, but whether a scheme that permits imposition of the death penalty, absent a finding that the defendant either killed or intended to kill the victims, is unconstitutional. In short, the Court's peculiar statutory analysis cannot withstand closer scrutiny. Thus, in nearly half of the States, and in two-thirds of the States that permit the death penalty for murder, a defendant who neither killed the victim nor specifically intended that the victim die may be sentenced to death for his participation in the robbery-murder. Far from "weigh[ing] very heavily on the side of rejecting capital punishment as a suitable penalty for" felony murder, Coker v. Georgia, 443 U.S., at 596 , these legislative judgments indicate that our "evolving standards of decency" still embrace capital punishment for this crime. For this reason, I conclude that the petitioner has failed to meet the standards in Coker and Woodson that the "two crucial indicators of evolving standards of decency . . . - jury determinations and legislative enactments - both point conclusively to the repudiation" of capital punishment for felony murder. 428 U.S., at 293 (emphasis added). In short, the death penalty for felony murder does not fall short of our national "standards of decency." C As I noted earlier, the Eighth Amendment concept of proportionality involves more than merely a measurement of contemporary standards of decency. It requires in addition that the penalty imposed in a capital case be proportional to the harm caused and the defendant's blameworthiness. Critical to the holding in Coker, for example, was that "in terms of moral depravity and of the injury to the person and [458 U.S. 782, 824] to the public, [rape] does not compare with murder, which . . . involve[s] the unjustified taking of human life." 433 U.S., at 598 . Although the Court disingenuously seeks to characterize Enmund as only a "robber," ante, at 797, it cannot be disputed that he is responsible, along with Sampson and Jeanette Armstrong, for the murders of the Kerseys. There is no dispute that their lives were unjustifiably taken, and that the petitioner, as one who aided and abetted the armed robbery, is legally liable for their deaths. 40 Quite unlike the defendant in Coker, the petitioner cannot claim that the penalty imposed is "grossly out of proportion" to the harm for which he admittedly is at least partly responsible. The Court's holding today is especially disturbing because it makes intent a matter of federal constitutional law, requiring this Court both to review highly subjective definitional problems customarily left to state criminal law and to develop an Eighth Amendment meaning of intent. As JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett, the Court's holding substantially "interfere[s] with the States' individual statutory categories for assessing legal [458 U.S. 782, 825] guilt." 438 U.S., at 616 . 41 See also id., at 635-636 (opinion of REHNQUIST, J.) (rejecting the idea that intent to kill must be proved before the State can impose the death penalty). Although the Court's opinion suggests that intent can be ascertained as if it were some historical fact, in fact it is a legal concept, not easily defined. Thus, while proportionality requires a nexus between the punishment imposed and the defendant's blameworthiness, the Court fails to explain why the Eighth Amendment concept of proportionality requires rejection of standards of blameworthiness based on other levels of intent, such as, for example, the intent to commit an armed robbery coupled with the knowledge that armed robberies involve substantial risk of death or serious injury to other persons. Moreover, the intent-to-kill requirement is crudely crafted; it fails to take into account the complex picture of the defendant's knowledge of his accomplice's intent and whether he was armed, the defendant's contribution to the planning and success of the crime, and the defendant's actual participation during the commission of the crime. Under the circumstances, the determination of the degree of blameworthiness is best left to the sentencer, who can sift through the facts unique to each case. Consequently, while the type of mens rea of the defendant must be considered carefully in assessing the proper penalty, it is not so critical a factor in determining blameworthiness as to require a finding of intent to kill in order to impose the death penalty for felony murder. In sum, the petitioner and the Court have failed to show that contemporary standards, as reflected in both jury determinations and legislative enactments, preclude imposition of [458 U.S. 782, 826] the death penalty for accomplice felony murder. Moreover, examination of the qualitative factors underlying the concept of proportionality do not show that the death penalty is disproportionate as applied to Earl Enmund. In contrast to the crime in Coker, the petitioner's crime involves the very type of harm that this Court has held justifies the death penalty. Finally, because of the unique and complex mixture of facts involving a defendant's actions, knowledge, motives, and participation during the commission of a felony murder, I believe that the factfinder is best able to assess the defendant's blameworthiness. Accordingly, I conclude that the death penalty is not disproportionate to the crime of felony murder, even though the defendant did not actually kill or intend to kill his victims. 42 [458 U.S. 782, 827] III Although I conclude that the death penalty is not disproportionate to the crime of felony murder, I believe that, in light of the State Supreme Court's rejection of critical factual findings, our previous opinions require a remand for a new sentencing hearing. 43 Repeatedly, this Court has emphasized that capital sentencing decisions must focus "on the circumstances of each individual homicide and individual defendant." Proffitt v. Florida, 428 U.S. 242, 258 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). In striking down the mandatory capital punishment statute in Woodson v. North Carolina, 428 U.S., at 304 , a plurality of the Court wrote: "A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. ". . . [W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." In Lockett v. Ohio, 438 U.S., at 605 , a plurality of this Court concluded: "Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot [458 U.S. 782, 828] avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. . . . The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence" (footnote omitted). Accordingly, "the sentencer, in all but the rarest kind of capital case, [may] not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death" (footnotes omitted). Id., at 604. See id., at 613 (opinion of BLACKMUN, J.) (concluding that the Ohio capital sentencing statute is unconstitutional because it "provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide"); Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam) (holding that the exclusion of evidence, from the capital sentencing proceeding, that the petitioner was not present when the victim was killed violated due process because "[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial"); Eddings v. Oklahoma, 455 U.S. 104 (1982) (adopting the plurality's rule in Lockett). Thus, in deciding whether or not to impose capital punishment on a felony murderer, a sentencer must consider any relevant evidence or arguments that the death penalty is inappropriate for a particular defendant because of his relative lack of mens rea and his peripheral participation in the murder. Because of the peculiar circumstances of this case, I conclude that the trial court did not give sufficient consideration to the petitioner's role in the crimes, and thus did not consider the mitigating [458 U.S. 782, 829] circumstances proffered by the defendant at his sentencing hearing. 44 In sentencing the petitioner, the trial court found four statutory aggravating circumstances: the petitioner had been convicted previously of a violent felony; the murders had been committed during the course of a robbery; the murders had been committed for pecuniary gain; and the murders were especially heinous, atrocious, or cruel. In its factual findings, the trial court stated that the "armed robbery . . . was planned ahead of time by the defendant Enmund," App. 30, and that he had shot each of the victims while they lay prone in order to eliminate them as witnesses. Id., at 30-31. The court expressly found that "none of the statutory mitigating circumstances applied" to the petitioner. Id., at 32 (emphasis in original). Among other findings, the court rejected Enmund's claim that his participation in the murders had been "relatively minor," and found instead that "his participation in the capital felony was major. The defendant Enmund planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons." Ibid. The Florida Supreme Court rejected these findings in part. The court noted that there "was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered." 399 So.2d, at 1370. Rather, "the only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kersey's money." Ibid. [458 U.S. 782, 830] Consequently, the court expressly rejected the trial court's finding that Enmund personally had committed the homicides. Reviewing the aggravating circumstances, the Supreme Court consolidated two of them, and rejected the trial court's conclusion that the murders had been "heinous, atrocious, or cruel," since the evidence showed that the Armstrongs had killed the Kerseys in a gun battle arising from Mrs. Kersey's armed resistance, and not that the petitioner had killed them in an effort to eliminate them as witnesses. See Armstrong v. State, 399 So.2d, at 963. Although the state statutory procedures did not prevent the trial judge from considering any mitigating circumstances, 45 the trial judge's view of the facts, in part rejected by the State Supreme Court, effectively prevented such consideration. In his erroneous belief that the petitioner had shot both of the victims while they lay in a prone position in order to eliminate them as witnesses, the trial judge necessarily rejected the only argument offered in mitigation - that the petitioner's role in the capital felonies was minor, undeserving of the death penalty, because the petitioner was in the car when the fatal shots were fired. This fundamental misunderstanding of the petitioner's role in the crimes prevented the trial court from considering the "circumstances of the particular offense" in imposing sentence. Woodson v. North Carolina, 428 U.S., at 304 . Moreover, this error was not so insignificant that we can be sure its effect on the [458 U.S. 782, 831] sentencing judge's decision was negligible. 46 Accordingly, I would vacate the decision below insofar as it affirms the death sentence, and remand the case for a new sentencing hearing. [Footnote 1 Much of the evidence concerning these crimes came from J. B. Neal, to whom Sampson Armstrong made numerous admissions on the day of the murders. See Record 1344-1365. [Footnote 2 J. B. Neal testified that Armstrong had told him that two guns were involved; Jeanette had one and Sampson had the other. Id., at 1354. [Footnote 3 An autopsy revealed that Mr. Kersey had been shot twice, once with a .38-caliber bullet, and once with a .22-caliber bullet. Mrs. Kersey had been shot six times; of the bullets that could be identified, two were fired from a .38-caliber gun, and one from a .22-caliber gun. According to a firearms expert, the .22-caliber bullets were fired from the same gun, and the .38-caliber bullets were fired from the same gun. See 399 So.2d 1362, 1364 (Fla. 1981). [Footnote 4 Ida Jean Shaw was the petitioner's common-law wife and Jeanette Armstrong's mother. She was later given immunity from prosecution in return for her testimony. Record 1178-1179. [Footnote 5 Thomas Kersey normally kept large sums of money in his wallet and indiscriminately showed the cash to people he dealt with. A few weeks before his murder, Kersey revealed the contents of his wallet to the petitioner and bragged that at any time he could "dig up $15,000, $16,000." 399 So.2d, at 1365. See Record 1205-1206. [Footnote 6 Ida Jean Shaw's trial testimony contradicted her earlier statements to police. When police initially questioned her, she insisted that Jeanette had been shot by an unknown assailant while she and Jeanette had been traveling to a nearby town. Id., at 1191-1192. Later she gave investigators a statement implicating the petitioner and Sampson Armstrong in the murders. Id., at 1209-1210. Subsequently, she gave two more statements repudiating the statement implicating the petitioner. Id., at 1208-1209. In his closing argument, the prosecutor acknowledged the conflict between Ida Jean Shaw's testimony that she was not in the yellow Buick the morning of the murders, and the testimony of a witness who saw her in the car shortly before and after the murders. The prosecutor deemed the inconsistency irrelevant. Id., at 1571-1572. [Footnote 7 At the sentencing hearing, the prosecutor theorized that the petitioner was not the "trigger man," but the "person who set it all up." Id., at 1679. The prosecutor admitted that he did not "know whether [the petitioner] set foot inside that house or not. But he drove them there. He set it up, planned it." Id., at 1679-1680. In this Court as well, the State acknowledges that the petitioner "was apparently not the triggerman in the two murders involved in his [sic] case." Brief in Opposition 14. [Footnote 8 In Florida at the time of the Kersey murders, first-degree murder was defined in Fla. Stat. 782.04(1)(a) (1973) as "[t]he unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . robbery . . . ." In instructing the jury on first-degree murder, the judge read the above provision verbatim. Record 1605-1606. He also added that "[t]he killing of a human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill." Id., at 1606. Distinguishing first-and second-degree felony murder, the judge stated: "In order to sustain a conviction of first degree murder while engaging in the perpetration of or in the attempted perpetration of the crime of robbery, the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery. "In order to sustain a conviction of second degree murder while engaged in the perpetration of or the attempted perpetration of robbery, the evidence must establish beyond a reasonable doubt that the unlawful killing was committed in the perpetration of or in the attempted perpetration of robbery, and that the defendant actually, although not physically present at the time of the commission of the offense, did, nonetheless, procure, counsel, command or aid another to commit the crime." Id., at 1609-1610. [Footnote 9 On the motion of the petitioner and the prosecution, Jeanette Armstrong's trial had been severed from the trial of her codefendants. Id., at [458 U.S. 782, 805] 50, 57. Jeanette Armstrong was tried first and convicted of two counts of second-degree murder and one count of robbery. The trial judge sentenced her to three consecutive life sentences. 399 So.2d, at 1371. [Footnote 10 Under Florida law, the "court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment." Fla. Stat. 921.141(1) (1981). The jury renders only an "advisory sentence" based on the mitigating and aggravating circumstances. 921.141(2). At the sentencing hearing, the petitioner presented no evidence, Record 1677, but his attorney argued that the death penalty was inappropriate because at most the evidence showed that the petitioner saw Thomas Kersey's money, suggested the robbery, and drove the Armstrongs to the Kersey house. Id., at 1683-1684. He also argued that death was an excessive penalty because the gunfight was spontaneous, and beyond the petitioner's control. Id., at 1684. [Footnote 11 Initially, the trial court failed to make written findings as required by Fla. Stat. 921.141(3) (1981). On the first state appeal, the Florida Supreme Court remanded the case for such findings. See App. 29. [Footnote 12 Regarding the extent of the petitioner's involvement, the trial court reasoned that because two different guns had been used in the murders, and because Jeanette Armstrong had been seriously wounded by gunfire, the petitioner must have fired one of the guns. Moreover, since each of the Kerseys was injured by a bullet of each type, the petitioner must have shot each victim. Id., at 31; 399 So.2d, at 1372. [Footnote 13 The court also rejected the other statutory mitigating circumstances. In particular, the petitioner did not have a record free of criminal convictions, Fla. Stat. 921.141(6)(a) (1981); there was no evidence that he had acted under the influence of extreme mental or emotional disturbance, 921.141(6)(b); there was no evidence that the victims were participants in or consented to the crimes, 921.141(6)(c); there was no evidence that he acted under extreme duress or under the substantial domination of another person, 921.141(6)(e); there was no evidence that the petitioner was incapable of appreciating the criminality of his conduct or conforming his conduct to the requirements of law, 921.141(6)(f); and because he was 42 years old at the time of the offense, his age was not a mitigating factor, 921.141(6)(g). App. 32; 399 So.2d, at 1372-1373. [Footnote 14 The trial court made nearly identical findings for Sampson Armstrong. In particular, it found that the murders were committed during the course of a robbery, that they were committed for pecuniary gain, and that they were especially heinous, atrocious, or cruel. See Armstrong v. State, 399 So.2d 953, 960-961 (Fla. 1981). The trial court considered the only possible mitigating circumstance to be Armstrong's age (23), but did not actually find that fact to be mitigating. See id., at 962 ("the factor of age was given no consideration"). Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial judge imposed the death penalty for each murder conviction, and imposed a life sentence for the robbery. Id., at 955, 962. [Footnote 15 The Florida Supreme Court also affirmed the convictions and sentences of Sampson Armstrong. See Armstrong v. State, supra, at 960. [Footnote 16 Second-degree murder, based on felony murder, is defined in Fla. Stat. 782.04(3) (1973): "[W]hen committed in the perpetration of, or in the attempt to perpetrate, any . . . robbery, . . . except as provided in subsection (1), it shall be murder in the second degree . . . punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court." [Footnote 17 The court also noted that Sampson Armstrong's admissions to J. B. Neal made no mention of the petitioner, and that the petitioner's admissions to Ida Jean Shaw indicated only "his complicity." 399 So.2d, at 1370. [Footnote 18 In Armstrong, the Florida Supreme Court expressly had rejected the trial court's conclusion that the Kerseys were murdered in order to eliminate them as witnesses. "It simply cannot be said that there was proof that the robbers killed in order to assure that there would be no witnesses against them." 399 So.2d, at 963. On the contrary, "[t]he only direct account of what transpired is from the testimony of J. B. Neal about Armstrong's statement to him. By that account, the shootings were indeed spontaneous and were precipitated by the armed resistance of Mrs. Kersey." Ibid. In reaching this conclusion, the State Supreme Court also rejected the trial court's conclusions derived from the pathologist's testimony. Rather than indicating that the victims were prone when shot, the pathologist's testimony "as to the direction of fire and the positions of the victims when shot [was] equivocal at best." Ibid. [Footnote 19 In this Court, the petitioner neither challenges his convictions for robbery and felony murder nor argues that the State has overstepped constitutional bounds in defining murder to include felony murder. The petitioner's sole challenge is to the penalty imposed for the murders. [Footnote 20 Although the petitioner ostensibly relies on the fact that he was not the triggerman, the core of his argument is that the death penalty is disproportionate to his crime because he did not have the specific intent to kill the Kerseys. Pulling the trigger is only one factor, albeit a significant one, in determining intent. See Tr. of Oral Arg. 21-23 (counsel for petitioner asserting that so long as a defendant had the intent to kill, he need not actually have pulled the trigger in order to be subjected to capital punishment, and that even if he had pulled the trigger, he would not be subject to the death penalty absent a specific intent to kill). [Footnote 21 The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [Footnote 22 See Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976) (holding that Louisiana's mandatory death penalty statute violated the Eighth and Fourteenth Amendments); Woodson v. North Carolina, 428 U.S. 280 (1976) (holding that the State's mandatory death penalty statute violated the Eighth and Fourteenth Amendments); Jurek v. Texas, 428 U.S. 262 (1976) (upholding the Texas death penalty statute); Proffitt v. Florida, 428 U.S. 242 (1976) (upholding Florida's death penalty statute). [Footnote 23 In only one case since Gregg has this Court upheld a challenged death sentence. See Dobbert v. Florida, 432 U.S. 282 (1977) (holding that changes in the death penalty statute between the time of the murder and the sentencing did not amount to an ex post facto violation). In five cases, the Court vacated the death sentence because the sentencer could not or did not consider all mitigating factors proffered by the defendant. See Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) (per curiam); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion); Bell v. Ohio, 438 U.S. 637 (1978) (plurality opinion); Green v. Georgia, 442 U.S. 95 (1979) (per curiam); Eddings v. Oklahoma, 454 U.S. 104 (1982) (adopting the reasoning of the Lockett plurality as the holding of the Court). In two cases, the Court reversed the judgments affirming the death sentences because the jury had been selected in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968). See Adams v. Texas, 448 U.S. 38 (1980); Davis v. Georgia, 429 U.S. 122 (1976) (per curiam). In five other cases, the Court vacated death sentences for a variety of reasons unrelated to the proportionality of the punishment to the crime. See Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion) (due process violated when defendant had no chance to explain or deny information given to the sentencing judge); Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion) (reversing the death sentence because the aggravating circumstance relied upon by jury was not so tailored as to avoid arbitrary and capricious infliction of death penalty); Beck v. Alabama, 447 U.S. 625 (1980) (holding that death penalty may not be imposed where jury was precluded from considering lesser included noncapital offense, when evidence existed to support such a verdict); Bullington v. Missouri, 451 U.S. 430 (1981) (holding that Double Jeopardy Clause prevented imposition of death sentence upon retrial when jury had imposed life imprisonment at the first trial); Estelle v. Smith, 451 U.S. 454 (1981) (holding that admission of psychiatrist's testimony at the penalty phase of the capital trial violated the defendant's Fifth Amendment [458 U.S. 782, 812] privilege against self-incrimination because he had not been told before his psychiatric examination that his statements could be used against him during the sentencing proceeding). In Coker v. Georgia, 433 U.S. 584 (1977), the Court vacated a death sentence for a man who had been convicted of rape of an adult woman. Nevertheless, the Court made clear that the death penalty is not per se disproportionate to the crime of murder. See, e. g., id., at 591 (opinion of WHITE, J.) ("It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; . . . neither is it always disproportionate to the crime for which it is imposed"); id., at 604 (opinion of BURGER, C. J.) (accepting "that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes," but rejecting the argument that death is a disproportionate punishment for rape, much less murder). [Footnote 24 Strictly speaking, this Court cannot state unequivocally whether the petitioner specifically intended either to kill the Kerseys or to have them killed because the trial court made no findings on these issues. The trial court, however, did make the finding, not rejected by the Florida Supreme Court, that the petitioner's participation was not minor, but "major" in that he "planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons." App. 32. Accordingly, I proceed on the assumption that the petitioner's only intent was to commit an armed robbery with his accomplices, the Armstrongs. [Footnote 25 JUSTICE POWELL concurred in the plurality's reasoning in concluding that "ordinarily" death was disproportionate for such a crime, but stopped short of a per se rule. 433 U.S., at 601 . JUSTICE BRENNAN and JUSTICE MARSHALL concurred in the judgment, adhering to their previously announced views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See id., at 600-601. [Footnote 26 In fact, two of those States, Louisiana and North Carolina, did not define rape as a capital felony when they reenacted their death penalty statutes following their invalidation in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976). See 433 U.S., at 594 . Consequently, at the time Coker was decided only Georgia authorized the death penalty for the rape of an adult woman. [Footnote 27 The Court has conducted a less searching inquiry for punishments less than death. See Rummel v. Estelle, 445 U.S. 263 (1980) (upholding, against an Eighth Amendment challenge, a life sentence imposed under a state recidivist statute); Hutto v. Davis, 454 U.S. 370 (1981) (per curiam) (upholding, on the basis of Rummel, a 40-year sentence for two marihuana convictions). In Rummel, the Court expressly noted that, for purposes of Eighth Amendment analysis, those "decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality" of prison sentences. 445 U.S., at 272 . [Footnote 28 According to one source, at early common law most felonies were capital crimes, but attempts were punished as misdemeanors and accidental killings were not punishable at all. The felony-murder rule was an effort to create felony liability for accidental killings caused during the course of an attempted felony. See ALI, Model Penal Code 210.2, Comment, p. 31, n. 74 (Off. Draft and Revised Comments 1980). [Footnote 29 See English Homicide Act of 1957, 5 & 6 Eliz. 2, ch. 11. The English attitude toward capital punishment, as reflected in recent legislation, differs significantly from American attitudes as reflected in state legislation; in 1965, England abolished the death penalty for all murders. See Murder (Abolition of Death Penalty) Act of 1965, 8 Halsbury's Statutes of England 541 (3d ed. 1969). [Footnote 30 See Comment, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous. L. Rev. 356, 364-365 (1978); Alderstein, Felony-Murder in the New Criminal Codes, 4 Am. J. Crim. L. 249, 251-252 (1976). [Footnote 31 See, e. g., Royal Commission on Capital Punishment 1949-1953, Report 31-33 (1953) (reporting that application of the felony-murder doctrine was limited to those cases in which the verdict could have been intentional murder); Law Revision Commission of the State of New York, 3d Annual Report 665, 668, and n. 444 (1937). It is significant that the New York Legislature rejected the Commission's recommendation of requiring some element of mens rea, and instead adopted a scheme giving jurors discretion to recommend life sentences. See 1937 N. Y. Laws, ch. 67. [Footnote 32 The extent of jury nullification and the nearly complete repudiation of mandatory death penalty laws led a plurality of this Court to conclude that the "two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society - jury determinations and legislative enactments - both point conclusively to the repudiation of automatic death sentences." Woodson v. North Carolina, 428 U.S., at 293 (opinion [458 U.S. 782, 818] of Stewart, POWELL, and STEVENS, JJ.). These factors supported the Court's conclusion that North Carolina's mandatory death penalty law violated the Eighth Amendment. [Footnote 33 See App. D to Brief for Petitioner. Moreover, the last nontriggerman was executed in 1955. By contrast, 72 rapists were executed between 1955 and this Court's 1977 decision in Coker. Brief for Petitioner 34-35. [Footnote 34 See App. E to Brief for Petitioner; NAACP Legal Defense and Education Fund, Inc., Death Row U.S. A. (Oct. 20, 1981). [Footnote 35 Only Missouri, New Hampshire, and Pennsylvania define felony murder as a crime distinct from capital murder. See Mo. Rev. Stat. 565.001, 565.003, 565.008(2) (1978); N. H. Rev. Stat. Ann. 630:1, 630:1-a(I)(b)(2), 630:1-a(III) (1974 and Supp. 1981); 18 Pa. Cons. Stat. 2502(a), (b), (d), 1102(b) (1980). One exception to the New Hampshire scheme is 630:1(I)(b), which includes in the definition of capital murder a death caused "knowingly" in the course of a kidnaping. A fourth State, Washington, permits imposition of the death penalty if premeditated murder is aggravated by, inter alia, commission during a felony. Wash. Rev. Code 9A.32.030(1)(a), 10.95.020(9) (1981). [Footnote 36 See Ariz. Rev. Stat. Ann. 13-1105(A)(2), (C) (Supp. 1981-1982); Cal. Penal Code Ann. 189, 190 (West Supp. 1982); Colo. Rev. Stat. 18-3-102(1)(b), 18-1-105(1)(a) (1978 and Supp. 1981); Conn. Gen. Stat. Ann. 53a-54b, 53a-54c, 53a-35a(1) (West Supp. 1982); Fla. Stat. 782.04(1)(a), 775.082(1) (1981); Ga. Code 26-1101(b), (c) (1978); Idaho Code 18-4003(d), 4004 (1979); Ind. Code 35-42-1-1(2), 35-50-2-3(b) (Supp. 1981); Miss. Code Ann. 97-3-19(2)(e), 97-3-21 (Supp. 1981); Mont. Code Ann. 45-5-102(1)(b), (2) (1981); Neb. Rev. Stat. 28-303(2), 28-105(1) (1979); Nev. Rev. Stat. 200.030(1)(b), 200.030(4)(a) (1981); N. M. Stat. Ann. 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp. 1981); N.C. Gen. Stat. 14-17 (1981); Okla. Stat., Tit. 21, 701.7(B), 701.9(A) (1981); S. C. Code 16-3-10, 16-3-20(C)(a)(1) (1976 and Supp. 1981); S. D. Codified Laws 22-16-4, 22-16-12, 22-6-1(1), 22-3-3 (1979 and Supp. 1981); Tenn. Code Ann. 39-2402(a), (b) (Supp. 1981); Vt. Stat. Ann., Tit. 13, 2301, 2303(b), (c) (1974 and Supp. 1981); and Wyo. Stat. 6-4-101(a), (b) (1977). Two of these States, Colorado and Connecticut, provide that it is an affirmative defense to the capital crime if the accomplice did not "in any way solicit, request, command, importune, cause or aid the commission" of the homicidal act; was not armed with a deadly weapon and had no reason to believe that his cofelons were so armed; and did not engage or intend to engage, and had no reason to believe that his cofelons would engage, in conduct "likely to result in death or serious bodily injury." See Colo. Rev. Stat. 18-3-102(2) (1978); Conn. Gen. Stat. 53a-54c (Supp. 1982). Colorado also prevents imposition of the death penalty if the defendant's role, though sufficient to establish guilt, was "relatively minor." Colo. Rev. Stat. 16-11-103(5)(d) (1978). Even if they were available under the Florida statute, these provisions would have been of no help to the petitioner since the trial court found that there were no mitigating circumstances, in part because Enmund's role in the capital felony was not minor. See Fla. Stat. 921.141(6)(d) (1981). The State Supreme Court expressly affirmed the trial court's finding of no mitigating circumstances, and therefore the finding that the petitioner's role was not minor. 399 So.2d, at 1373. Of course, not all of the statutes listed above are identical. Several of them provide that robbery murder is a capital felony, but require proof of [458 U.S. 782, 821] additional aggravating circumstances, e. g., the defendant had been convicted previously of a violent felony, or the victim was a correctional officer, before the death penalty can be imposed. See, e. g., Okla. Stat., Tit. 21, 701.12 (1981); N. M. Stat. Ann. 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp. 1981). Others, like the Florida statute, define robbery murder as a capital offense and use the robbery as an aggravating circumstance. The common thread in all of these statutes, however, is that the defendant need not have the intent to kill in order to be subject to the death penalty. The Court's additional subdivision of this group of statutes, see ante, at 791-793, and nn. 10-13, serves only to obscure the point that 20 States permit imposition of the death penalty even though the defendant did not actually kill, and had no intent to kill. [Footnote 37 See Ark. Stat. Ann. 41-1501(1)(a), (2), (3) (1977) (a capital crime if death occurs during commission of the felony "under circumstances manifesting extreme indifference to the value of human life"); Del. Code Ann., Tit. 11, 636(a)(6), 636(b), 4209(a) (1979) (a capital crime only if the death is caused "with criminal negligence"); Ky. Rev. Stat. 507.020(1)(b), (2) (Supp. 1980) (defendant must "caus[e] the death of another person" under "circumstances manifesting extreme indifference to human life [and while] wantonly engag[ing] in conduct which creates a grave risk of death to another person"). It is an affirmative defense to capital felony murder in Arkansas if the "defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission." Ark. Stat. Ann. 41-1501(2) (1977). At oral argument, counsel for petitioner stated that "the determining factor is the intent to take life, conscious purpose to take life." Tr. of Oral Arg. 18. Under the petitioner's proposed standard, these statutes would be unconstitutional. [Footnote 38 See Ala. Code 13A-2-23, 13A-5-40(a)(2), (b), (c), (d), 13A-6-2(a)(1) (1977 and Supp. 1982) (the accomplice is not guilty of capital murder unless the killing is intentional, and the accomplice had "intent to promote or assist the commission" of the murder); Ill. Rev. Stat., ch. 38, §§ 9-1(a)(3), 9-1(b)(6) (1979) (a capital crime only if the defendant killed intentionally or with knowledge that his actions "created a strong probability of death or [458 U.S. 782, 822] great bodily harm"); La. Rev. Stat. Ann. 14.30(1) (West Supp. 1982) (defendant is guilty of capital murder only if he had "specific intent to kill or to inflict great bodily harm"); Ohio Rev. Code Ann. 2903.01(B), (C), (D), 2929.02(A), 2929.04(A)(7) (1982) (accomplice is not guilty of the capital crime unless he "purposely cause[d]" the death and was "specifically found to have intended to cause the death of another"; if defendant is not the "principal offender," the death penalty is precluded unless he "committed the aggravated murder with prior calculation and design"); Tex. Penal Code Ann. 12.31, 19.03(a)(2), 19.02(a)(1) (1974) (defendant is guilty of capital murder only if he "intentionally or knowingly" caused death during the course of the robbery); Utah Code Ann. 76-5-202(1)(d), (2), 76-3-206(1) (1978) (defendant is guilty of capital murder only if he "intentionally or knowingly" caused the death during the course of the robbery); and Va. Code 18.2-31(d), 18.2-10(a) (1982) (capital murder only if killing is "willful, deliberate and premeditated"). [Footnote 39 See Ill. Rev. Stat., ch. 38, §§ 9-1(a)(3), 9-1(b)(6) (1979) (a capital crime only if the defendant actually killed the victim and the defendant killed intentionally or with knowledge that his actions "created a strong probability of death or great bodily harm"); Md. Ann. Code, Art. 27, 410, 412(b), 413(d)(10), (e)(1) (1982) (except in cases of murder for hire, only principal in the first degree subject to the death penalty); Va. Code, 18.2-31(d), 18.2-10(a), 18.2-18 (1982) (except in cases of murder for hire, only the immediate perpetrator of the homicide, and not accomplice before the fact or principal in the second degree, may be tried for capital murder). Note that Illinois and Virginia also require an intent to kill. See n. 38, supra. [Footnote 40 The Court's attempt to downplay the significance of Enmund's role in the murders, see ante, at 786-787, n. 2, does not square with the facts of this case. The trial court expressly found that because Enmund had planned the robbery, his role was not minor, and that therefore no statutory mitigating circumstances applied. The Florida Supreme Court affirmed the finding of no mitigating circumstances, thereby affirming the underlying factual predicate - Enmund had planned the armed robbery. Moreover, even Enmund's trial counsel conceded at the sentencing hearing that Enmund initiated the armed robbery and drove the getaway car. See n. 10, supra. The Court misreads the opinion below in suggesting that the State Supreme Court deduced from the sentencing hearing that Enmund's only participation was as the getaway driver. In fact, the court made that statement with respect to the guilt phase of the trial. As I mentioned above, Enmund's counsel conceded at the sentencing hearing that Enmund had initiated the armed robbery. [Footnote 41 It is not true, as the petitioner suggests, that an intent-to-kill requirement would not interfere with the State's substantive categories of murder. Prohibiting the death penalty for accomplice felony murder would create a category of murder between capital murder, for which the death penalty is permitted, and the next statutory degree, for which some term of years (typically less than life imprisonment) is imposed. [Footnote 42 The petitioner and the Court also contend that capital punishment for felony murder violates the Eighth Amendment because it "makes no measurable contribution to acceptable goals of punishment." Coker v. Georgia, 433 U.S., at 592 . In brief, the petitioner and the Court reason that since he did not specifically intend to kill the Kerseys, since the probability of death during an armed robbery is so low, see ALI, Model Penal Code, supra n. 28, 210.2, Comment, p. 38, n. 96 (concluding from several studies that a homicide occurs in about one-half of one percent of all robberies), and since the death penalty is so rarely imposed on nontriggermen, capital punishment could not have deterred him or anyone else from participating in the armed robbery. The petitioner and the Court also reject the notion that the goal of retribution might be served because his "moral guilt" is too insignificant. At their core, these conclusions are legislative judgments regarding the efficacy of capital punishment as a tool in achieving retributive justice and deterring violent crime. Surely, neither the petitioner nor the Court has shown that capital punishment is ineffective as a deterrent for his crime; the most the Court can do is speculate as to its effect on other felony murderers and rely on "competent observers" rather than legislative judgments. See ante, at 799-800. Moreover, the decision of whether or not a particular punishment serves the admittedly legitimate goal of retribution seems uniquely suited to legislative resolution. Because an armed robber takes a serious risk that someone will die during the course of his crime, and because of the obviousness of that risk, we cannot conclude that the death penalty "makes no measurable contribution to acceptable goals of punishment." [Footnote 43 Apparently, the Court also intends that the case be remanded for a new death sentence hearing, consistent, of course, with its holding today. [Footnote 44 Although the petitioner challenges the constitutionality of his sentencing hearing, he does not challenge the constitutionality of the statutory capital sentencing procedures. See Proffitt v. Florida, 428 U.S. 242 (1976) (upholding the Florida scheme). [Footnote 45 See Songer v. State, 365 So.2d 696, 700 (Fla. 1978) (holding that Fla. Stat. 921.141(6) (1981), which lists mitigating circumstances, does not restrict the sentencer's consideration of mitigating circumstances to those expressly listed in the statute); Shriner v. State, 386 So.2d 525, 533 (Fla. 1980), cert. denied, 449 U.S. 1103 (1981); 399 So.2d, at 1371. As noted above, the petitioner offered no additional evidence at the sentencing hearing in mitigation of his crime. See Record 1677. His counsel argued, however, that the petitioner did not deserve the death penalty because his role in the crime was relatively minor. Id., at 1683-1685. [Footnote 46 The Florida Supreme Court's opinion fails to correct this error either by remanding for new sentencing or by evaluating the impact of the trial court's fundamental misperception of the petitioner's role in the killings. Rather, the court simply repeats three times, without any discussion of the evidence, that there are "no mitigating circumstances." 399 So.2d, at 1373. In light of the court's dramatically different factual findings, this review is inadequate to satisfy the Lockett principle. [458 U.S. 782, 832]

liberal

public_entity

criminal_procedure

1958-120-01

United States Supreme Court ROSENBERG v. UNITED STATES(1959) No. 451 Argued: April 28, 1959Decided: June 22, 1959 Petitioner was convicted in a Federal District Court of transporting in interstate commerce, in violation of 18 U.S.C. 2314, a check obtained by the perpetration of a fraud to which he had been a party. Upon his demand at the trial for production for inspection of Federal Bureau of Investigation files, the United States Attorney delivered numerous documents from the Government's files to the trial judge, who gave them to petitioner's counsel. However, the trial judge withheld a few documents, and petitioner claimed that failure to permit him to inspect them required reversal of his conviction under Jencks v. United States, 353 U.S. 657 . Held: The conviction is sustained. Pp. 368-371. 1. Since its enactment, 18 U.S.C. 3500 - not the Jencks decision - governs the production of statements of government witnesses for a defendant's inspection at trial. Palermo v. United States, ante, p. 343. P. 369. 2. Two reports of F. B. I. investigators were properly withheld as not being "statements" of the kind required to be produced by 18 U.S.C. 3500, since they were neither signed nor otherwise adopted by any witness at the trial nor were they reproductions of any statement made by any witness at the trial. P. 369. 3. A third document did comply with the requirement of the statute, since it was a typewritten copy of a statement given to the F. B. I. by petitioner's confessed associate in the crime, who testified against him, it was signed by the associate and it was pertinent to the trial of the case; but its production would have served no useful purpose, since petitioner's counsel had been given the original statement of which this was merely a copy. Pp. 369-370. 4. Among the documents withheld were five letters written by the victim to the F. B. I. and signed by her; but they failed to meet the requirement of 18 U.S.C. 3500 (b) that only statements which relate to the subject matter as to which the witness has testified need be produced. P. 370. [360 U.S. 367, 368] 5. A letter written by the victim to the United States Attorney, signed by her, and stating that she feared that her memory was poor as to the matters she testified about should have been produced; but failure to produce it was harmless error, since the same information was revealed by the victim to petitioner's counsel under cross-examination and upon questioning by the trial judge. Pp. 370-371. 257 F.2d 760, affirmed. Edward M. Dangel argued the cause for petitioner. With him on the brief was Leo E. Sherry. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Kirby W. Patterson. A. L. Wirin and Fred Okrand filed a brief for Arthur L. Harris, Sr. et al., as amici curiae, in support of petitioner. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. Petitioner was convicted in the District Court for the Eastern District of Pennsylvania, 146 F. Supp. 555, for transporting in interstate commerce a check obtained by the perpetration of a fraud to which he had been a party. 18 U.S.C. 2314. That conviction was reversed by the Court of Appeals for the Third Circuit on the ground that Jencks v. United States, 353 U.S. 657 , which had been decided after conviction but before appeal, required production for petitioner's inspection of certain statements in the prosecutor's possession. 245 F.2d 870. The second trial thus ordered also resulted in a conviction, 157 F. Supp. 654, which was sustained by the Court of Appeals for the Third Circuit, 257 F.2d 760. We granted certiorari, 358 U.S. 904 , limited to the questions of the application of the Jencks rule to this prosecution, the effect of the statute enacted establishing legislative [360 U.S. 367, 369] rules concerning the production of documents. 18 U.S.C. (Supp. V) 3500, and the propriety of the ruling of the Court of Appeals that if the trial judge had erred in failing to deliver to petitioner certain documents, the error was harmless and therefore not grounds for reversal. In the second trial, upon a demand for production for inspection of Federal Bureau of Investigation files, the United States Attorney delivered to the trial judge, and the trial judge in turn gave to petitioner's counsel, numerous documents from the Government's files. Many of these would not have been required to be provided under either the Jencks decision or the statute enacted subsequent to it. Petitioner complains that the few documents withheld by the trial judge were required to be submitted for his inspection by our opinion in Jencks and that the failure to give him that opportunity requires a reversal. We have today held in Palermo v. United States, ante, p. 343, that since its enactment 18 U.S.C. (Supp. V) 3500 and not the Jencks decision governs the production of statements of government witnesses for a defendant's inspection at trial. In accordance with 18 U.S.C. (Supp. V) 3500 (c), the material withheld was preserved in the record to permit review of the correctness of the trial judge's rulings. As did the Court of Appeals, we have reviewed the documents withheld by the trial judge. Two are reports by FBI investigators which in no sense complied with subsection (e) of the statute. They were neither signed nor otherwise adopted by any witness at the trial, nor were they reproductions as statutorily required of any statement made by any witness at the trial. A third document did comply with such requirement. It is a typewritten copy of a statement given by Rosenberg's confessed associate in the crime, Meierdiercks, to the FBI. It is signed by Meierdiercks and its contents were pertinent to the trial of the case. However, the original handwritten [360 U.S. 367, 370] statement, of which this was, as already stated, merely a copy, was itself given to petitioner's attorney. No relevant purpose could have been served by giving petitioner's counsel a typewritten copy of a document which he had already been given in its original form, no advantage to the petitioner was denied by withholding it. The last group of documents in controversy is a series of letters written by the victim Florence Vossler to the FBI. They were signed by her and thus met the requirement of subsection (e). However, of the six letters withheld by the trial judge, five clearly fail to meet the statutory requirement that only that statement "which relates to the subject matter as to which the witness has testified" need be produced. 18 U.S.C. (Supp. V) 3500 (b). These five were totally irrelevant to the proceedings. In the sixth of this group of letters, Florence Vossler wrote to the Assistant United States Attorney that her memory had dimmed in the three years that had passed since the fraud had been perpetrated and that to refresh her failing memory she would have to reread the original statement she had given before the first trial to the FBI. A statement by a witness that she fears her memory as to the events at issue was poor certainly "relates to the subject matter as to which the witness has testified" and should have been given to defendant. This was recognized as error by the Court of Appeals. 257 F.2d 760, 763. That court, however, found that the same information which was contained in the letter was revealed to defendant's counsel by statements made by Florence Vossler under cross-examination and upon questioning by the trial judge. A review of the record, portions of which are reproduced in an Appendix, precludes us from rejecting the judgment on which the Court of Appeals based its conclusion that the failure to require [360 U.S. 367, 371] production of this letter was empty of consequence. Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness' admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter. An appellate court should not confidently guess what defendant's attorney might have found useful for impeachment attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled. However, when the very same information was possessed by defendant's counsel as would have been available were error not committed, it would offend common sense and the fair administration of justice to order a new trial. There is such a thing as harmless error and this clearly was such. The judgment of the Court of Appeals for the Third Circuit is therefore Affirmed. [For dissenting opinion of MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, see post, p. 373.] APPENDIX TO OPINION OF THE COURT. Mr. Singer. "Miss Vossler, it has been quite sometime since you have testified. Have you had an opportunity within the last six months or so to go over any previous testimony or statements which you might have given with reference to this matter? Have you spoken to anyone - " Miss Vossler. "You mean testimony that I gave?" Mr. Singer. "That is correct." Miss Vossler. "The testimony that I gave in this court?" The Court. "Yes, in June, 1956." Miss Vossler. "Yes. No, I haven't seen anything." [360 U.S. 367, 372] The Court. "You haven't seen - " Miss Vossler. "Any testimony." The Court. " - the transcript of that testimony - " Miss Vossler. "No, sir." The Court. " - which was in books like this (indicating)?" Miss Vossler. "No, no, Your Honor, nothing." The Court. "Well, have you seen any statement which you gave to agents of the Federal Bureau of Investigation?" Miss Vossler. "Yes, because I had a copy of the first statement that I gave on January 24. That is the only statement I had." The Court. "Have you got that with you?" Miss Vossler. "No, I haven't now." The Court. "When did you last see it?" Miss Vossler. "Well, Mr. Bechtle asked that I leave it with him upstairs." The Court. "When was that?" Miss Vossler. "Monday when I arrived here." The Court. "In other words, you looked it over Monday?" Miss Vossler. "Well, I glanced at it Monday. I didn't read it line for line." The Court. "Well, when did you last read it line for line?" Miss Vossler. "Well, last week, because I had it at my home." The Court. "Last week you read over the statement - " Miss Vossler. "Yes." The Court. " - of January 24, you say, 1955?" Miss Vossler. "Yes. That is when the FBI agents came to my home." The Court. "I see. Last week. You have that statement, don't you?" Mr. Singer. "I have it here." [360 U.S. 367, 373] Miss Vossler. "That is the only statement that I have seen at all at any time." Record, pp. 330-332. Further evidence of Florence Vossler's loss of clear recollection came to defendant's attorney during the course of the cross-examination. He asked the witness to identify a Mr. McComb. Miss Vossler. "Well, let me see if I can remember. Mr. McComb came to my house one time - you see, it is always possible to find the names of people who buy leases or purchase leases - " Mr. Singer. "May I interrupt you one moment, please. In all fairness to the witness, Your Honor, I feel that I should introduce this report and permit her to refresh her recollection." The Court. "Yes, thank you. What number is it?" Mr. Singer. "This is Court's Exhibit No. 10, which is a summary of various statements given by Miss Vossler to the FBI. And I ask Miss Vossler to read [360 U.S. 367, 2] so that she may properly answer the questions." Record, pp. 345-346. MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting. The Government's case against petitioner rested on the testimony of Charles Meierdiercks, a confessed accomplice in the swindle that concerns us here, and Florence Vossler, the victim. Meierdiercks testified, in considerable detail, that he and the petitioner obtained Miss Vossler's check by fraud and that petitioner transported that check in interstate commerce before cashing it. Miss Vossler's testimony corroborated that of Meierdiercks to a considerable extent, but did not implicate petitioner. Since a conviction would have been impossible unless the jury [360 U.S. 367, 374] believed Meierdiercks, it seems apparent that the Government put Miss Vossler on the stand in the hope that her detailed corroboration of Meierdiercks' story would lend credence in the eyes of the jury to the testimony of the confessed swindler. If the defense could have effectively impeached Miss Vossler, the Government would have had to rely on the essentially uncorroborated testimony of Meierdiercks for a conviction. Defense counsel moved at the end of Miss Vossler's direct testimony for production of "pertinent material in the possession of the government concerning this particular witness." The trial judge, pursuant to this motion, ordered the delivery of some material to the defense but did not include a letter to the Assistant United States Attorney - handwritten and signed by Miss Vossler shortly before the trial - which stated in part: "As a matter of fact, as time goes on, I am more hazy about the whole transaction and might not fare too well under a cross-examination, though I have here my statement with which to refresh my memory. It will be 3 years in January 1958 since the above swindle took place; therefore, I could not be accurate as to day to day occurrences after such a period, though, as stated, possibly a review of my statement would help." The Court of Appeals and this Court both agree that this letter was a statement relevant to the subject matter as to which the witness testified on direct examination, and thus should have been given to the defense under the command of the Jencks statute, 18 U.S.C. (Supp. V) 3500. The Court holds, however, that: "There is such a thing as harmless error and this clearly was such." I dissent because it plainly appears that the harmless error doctrine should not be invoked in the circumstances of this case. The principle underlying our decision in Jencks v. United States, 353 U.S. 657 , was that it is impossible [360 U.S. 367, 375] for a judge to be fully aware of all the possibilities for impeachment inhering in a prior statement of a government witness, "Because only the defense is adequately equipped to determine [its] . . . effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense . . . ." 353 U.S., at 668 -669. The Jencks statute was clearly designed to effectuate this principle. The statute, while delimiting the statements which are to be turned over to the defense, obviously comprehends that statements which are producible under it must be given to the defense regardless of a judge's opinion as to how useful they might be on cross-examination, for only the defense can fully appreciate their possible utility for impeachment. This is the rationale of the Jencks case, and this is the rationale of the statute. As the Senate reported: "the proposed legislation, as here presented, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial . . . ." S. Rep. No. 981, 85th Cong., 1st Sess., p. 3; and see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3, 4. Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply as to statements producible under the statute, see Bergman v. United States, 253 F.2d 933; United States v. Prince, 264 F.2d 850, fidelity to the principle underlying Jencks and the Jencks statute requires, I think, that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would [360 U.S. 367, 376] be clearly erroneous. In that determination, appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectively utilized a producible statement. This must necessarily be the case if the appellate court is to give effect to the underlying principle of Jencks, affirmed by the statute, which, I repeat, is that "only the defense is adequately equipped to determine [its] . . . effective use for purpose of discrediting the Government's witness . . . ." Indeed, another consideration which should move the appellate court to be especially hesitant to substitute its judgment as to trial strategy for that of defense counsel is that, under the procedure established by the statute, the defense does not see the statement and has no opportunity to present arguments showing prejudice from its withholding. In short, only a very strict standard is appropriate for applying the harmless error doctrine in these cases. Under such a standard, I cannot conclude that defense counsel could not have put Miss Vossler's letter to effective use in impeaching her. Although she stated on cross-examination that she had refreshed her memory before testifying by reference to a statement she had made previously, this oral testimony was obviously not as useful for impeachment purposes as her written admission shortly before trial that her memory of the events in question was failing. Defense counsel, if armed with the letter, might well have probed more deeply than he did in testing how her memory of the events to which she testified was refreshed. The trial strategy of defense counsel, familiar with his case and aware of the various possible lines of defense, might have been entirely different had he been in possession of the letter. At least I cannot bring myself to assume that this would not have been the case. This is not a case in which the statement erroneously withheld from the defense merely duplicated information [360 U.S. 367, 377] already in the defense's possession; * it is not a case in which the witness' testimony was unimportant to the proofs necessary for conviction; and it is not a case in which the witness' statement was wholly void of possible use for impeachment. In this case, the defense was denied a letter written by a key government witness shortly before trial making statements which raised serious questions as to her memory of the events about which she testified in considerable detail at the trial. In such a circumstance, I think it was error for the Court of Appeals to second-guess defense counsel as to the possible use of the letter on cross-examination. If we are to be faithful to the standards we have set for ourselves in the administration of criminal justice in the federal courts we must order a new trial in a case such as this where the possible utility to the defense of the erroneously withheld statement cannot be denied. "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos v. United States, 328 U.S. 750, 765 . (Emphasis supplied.) I would reverse the judgment of the Court of Appeals. [Footnote * The defense was not given a typed statement signed by Meierdiercks which was discoverable under the statute, but this was harmless error since the defense was given a handwritten statement from which the typed statement had been copied. [360 U.S. 367, 378]

conservative

public_entity

criminal_procedure

1966-033-01

United States Supreme Court NLRB v. ACME INDUSTRIAL CO.(1967) No. 52 Argued: November 14, 1966Decided: January 9, 1967 A collective bargaining agreement, which contained procedures for processing grievances culminating in compulsory and binding arbitration, provided that it was the respondent, employer's, policy not to "subcontract work which is normally performed by employees in the bargaining unit," and that, except as provided therein, if "equipment of the plant . . . is hereafter moved to another location of the Company, employees . . . who are subject to reduction in classification or layoff as a result thereof may transfer to the new location with full rights and seniority . . . ." During the contract term certain machinery was removed from the plant and in response to the union's query respondent stated that there was no violation of the agreement and therefore no obligation to answer questions about the machines. The union filed grievances and requested information concerning the equipment, which was refused by respondent. Unfair labor practice charges were then filed with the NLRB which held that respondent violated 8 (a) (5) of the National Labor Relations Act by refusing to bargain in good faith. The NLRB issued a cease-and-desist order after finding that the information was necessary to enable the union to evaluate the grievances filed and noting that the agreement contained no waiver of the union's statutory right to such information. The Court of Appeals refused to enforce the NLRB's order, holding that the provision for binding arbitration foreclosed the NLRB's exercise of power, as the construction and application of the contract provisions are solely for the arbitrator. Held: The arbitration provision in the agreement did not preclude the NLRB from finding that respondent violated 8 (a) (5) by refusing to furnish the union with information necessary to the proper performance of its representative duties. Pp. 435-439. (a) The employer has a general obligation to provide information needed by the bargaining representative for the proper performance of its duties during the term of a collective bargaining agreement. Pp. 435-436. [385 U.S. 432, 433] (b) The NLRB did not make a binding construction of the contract but only acted on the probability that the desired information was relevant and useful to the union in carrying out its statutory duties and responsibilities. P. 437. (c) The NLRB's action was in aid of the arbitral process by helping to sift out unmeritorious claims. P. 438. 351 F.2d 258, reversed and remanded. Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Nancy M. Sherman. E. Allan Kovar argued the cause and filed a brief for respondent. Joseph L. Rauh, Jr., John Silard, Stephen I. Schlossberg and Harriett R. Taylor filed a brief for Amalgamated Local Union No. 310, UAW, AFL-CIO, intervenor. MR. JUSTICE STEWART delivered the opinion of the Court. In NLRB v. C & C Plywood Corp., ante, p. 421, decided today, we dealt with one aspect of an employer's duty to bargain during the term of a collective bargaining agreement. In this case we deal with another - involving the obligation to furnish information that allows a union to decide whether to process a grievance. In April 1963, at the conclusion of a strike, the respondent entered into a collective bargaining agreement with the union which was the certified representative of its employees. The agreement contained two sections relevant to this case. Article I, 3, provided, "It is the Company's general policy not to subcontract work which is normally performed by employees in the bargaining unit where this will cause the layoff of employees or prevent the recall of employees who would normally perform this work . . . ." In Art. VI, 10, the respondent agreed that "[i]n the event the equipment of the [385 U.S. 432, 434] plant . . . is hereafter moved to another location of the Company, employees working in the plant . . . who are subject to reduction in classification or layoff as a result thereof may transfer to the new location with full rights and seniority, unless there is then in existence at the new location a collective bargaining agreement covering . . . employees at such location." A grievance procedure culminating in compulsory and binding arbitration was also incorporated into the collective agreement. The present controversy began in January 1964, when the union discovered that certain machinery was being removed from the respondent's plant. When asked by union representatives about this movement, the respondent's foremen replied that there had been no violation of the collective agreement and that the company, therefore, was not obliged to answer any questions regarding the machinery. After this rebuff, the union filed 11 grievances charging the respondent with violations of the above quoted clauses of the collective agreement. The president of the union then wrote a letter to the respondent, requesting "the following information at the earliest possible date: "1. The approximate dates when each piece of equipment was moved out of the plant. "2. The place to which each piece of equipment was moved and whether such place is a facility which is operated or controlled by the Company. "3. The number of machines or equipment that was moved out of the plant. "4. What was the reason or purpose of moving the equipment out of the plant. "5. Is this equipment used for production elsewhere." The company replied by letter that it had no duty to furnish this information since no layoffs or reductions in [385 U.S. 432, 435] job classification had occurred within five days (the time limitation set by the contract for filing grievances) prior to the union's formal request for information. This refusal prompted the union to file unfair labor practice charges with the National Labor Relations Board. A complaint was issued, and the Board, overruling its trial examiner, held the respondent had violated 8 (a) (5) of the Act 1 by refusing to bargain in good faith. Accordingly, it issued a cease-and-desist order. The Board found that the information requested was "necessary in order to enable the Union to evaluate intelligently the grievances filed" and pointed out that the agreement contained no "clause by which the Union waives its statutory right to such information." The Court of Appeals for the Seventh Circuit refused to enforce the Board's order. 351 F.2d 258. It did not question the relevance of the information nor the finding that the union had not expressly waived its right to the information. The court ruled, however, that the existence of a provision for binding arbitration of differences concerning the meaning and application of the agreement foreclosed the Board from exercising its statutory power. The court cited United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574 , and United Steel-workers v. American Mfg. Co., 363 U.S. 564 , as articulating a national labor policy favoring arbitration and requiring the Board's deference to an arbitrator when construction and application of a labor agreement are in issue. We granted certiorari to consider the substantial question of federal labor law thus presented. 383 U.S. 905 . There can be no question of the general obligation of an employer to provide information that is needed by [385 U.S. 432, 436] the bargaining representative for the proper performance of its duties. Labor Board v. Truitt Mfg. Co., 351 U.S. 149 . Similarly, the duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement. NLRB v. C & C Plywood Corp., ante, p. 421; Labor Board v. F. W. Woolworth Co., 352 U.S. 938 . The only real issue in this case, therefore, is whether the Board must await an arbitrator's determination of the relevancy of the requested information before it can enforce the union's statutory rights under 8 (a) (5). The two cases upon which the court below relied, and the third of the Steelworkers trilogy, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 , do not throw much light on the problem. For those cases dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer's agreement to arbitrate is in question. The weighing of the arbitrator's greater institutional competency, which was so vital to those decisions, must be evaluated in that context. 363 U.S., at 567 , 581-582, 596-597. The relationship of the Board to the arbitration process is of a quite different order. See Carey v. Westinghouse Corp., 375 U.S. 261, 269 -272. Moreover, in assessing the Board's power to deal with unfair labor practices, provisions of the Labor Act which do not apply to the power of the courts under 301, 2 must be considered. Section 8 (a) (5) proscribes failure to bargain collectively in only the most general terms, but 8 (d) amplifies it by defining "to bargain collectively" as including "the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to . . . any question arising [385 U.S. 432, 437] [under an agreement] . . . ." 3 And 10 (a) 4 provides: "The Board is empowered . . . to prevent any person from engaging in any unfair labor practice . . . . This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . . ." Thus, to view the Steelworkers decisions as automatically requiring the Board in this case to defer to the primary determination of an arbitrator 5 is to overlook important distinctions between those cases and this one. But even if the policy of the Steelworkers Cases were thought to apply with the same vigor to the Board as to the courts, that policy would not require the Board to abstain here. For when it ordered the employer to furnish the requested information to the union, the Board was not making a binding construction of the labor contract. It was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. This discovery-type standard decided nothing about the merits of the union's contractual claims. 6 When the respondent furnishes the requested [385 U.S. 432, 438] information, it may appear that no subcontracting or work transfer has occurred, and, accordingly, that the grievances filed are without merit. On the other hand, even if it appears that such activities have taken place, an arbitrator might uphold the respondent's contention that no breach of the agreement occurred because no employees were laid off or reduced in grade within five days prior to the filing of any grievance. Such conclusions would clearly not be precluded by the Board's threshold determination concerning the potential relevance of the requested information. Thus, the assertion of jurisdiction by the Board in this case in no way threatens the power which the parties have given the arbitrator to make binding interpretations of the labor agreement. 7 Far from intruding upon the preserve of the arbitrator, the Board's action was in aid of the arbitral process. Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim. 8 The expense of arbitration might be placed upon the union only for it to learn [385 U.S. 432, 439] that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result. We hold that the Board's order in this case was consistent both with the express terms of the Labor Act and with the national labor policy favoring arbitration which our decisions have discerned as underlying that law. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to enforce the Board's order. Reversed and remanded. Footnotes [Footnote 1 National Labor Relations Act, as amended, 61 Stat. 141, 29 U.S.C. 158 (a) (5). [Footnote 2 Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. 185. [Footnote 3 Cf. United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581 : "The grievance procedure is, in other words, a part of the continuous collective bargaining process." [Footnote 4 61 Stat. 146, 29 U.S.C. 160 (a). [Footnote 5 See Sinclair Refining Co. v. N. L. R. B., 306 F.2d 569, 570 (C. A. 5th Cir.). [Footnote 6 Cf. 4 Moore, Federal Practice § 26.161., 1175-1176 (2d ed.): "[I]t must be borne in mind that the standard for determining relevancy at a discovery examination is not as well defined as at the trial. . . . Since the matters in dispute between the parties are not as well determined at discovery examinations as at the trial, courts of necessity must follow a more liberal standard as to relevancy." Id., at 1181: "Examination as to relevant matters should be allowed whether or not the theory of the complaint is sound or the facts, if proved, would support the relief sought." [Footnote 7 This case, therefore, differs from NLRB v. C & C Plywood Corp., ante, p. 421, where the Board's determination that the employer did not have a contractual right to institute a premium pay plan was a determination on the merits. See C & C Plywood, ante, at 426, and n. 10. [Footnote 8 See Fafnir Bearing Co. v. N. L. R. B., 362 F.2d 716, 721: "By preventing the Union from conducting these studies [for an intelligent appraisal of its right to grieve], the Company was, in essence, requiring it to play a game of blind man's bluff." [385 U.S. 432, 440]

liberal

person

unions

1951-083-01

United States Supreme Court FED. TRADE COMM'N v. RUBEROID CO.(1952) No. 448 Argued: Decided: May 26, 1952 A company which was engaged in the manufacture of roofing materials was found by the Federal Trade Commission to have discriminated among customers in the prices charged for its products. The Commission held that the discriminations violated 2 (a) of the Clayton Act, as amended, and ordered the company to cease and desist from selling "products of like grade and quality to any purchaser at prices lower than those granted other purchasers who in fact compete with the favored purchaser in the resale or distribution of such products." Upon the company's petition for review, the Court of Appeals affirmed, but refused an order of enforcement. Held: 1. Congress has vested in the Federal Trade Commission the primary responsibility for fashioning orders dealing with Clayton Act violations, and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist. P. 473. 2. Although in the company's price discriminations between competing purchasers the Commission found only differential of 5% or more, the order was not too broad in prohibiting all price differentials between competing purchasers, in view of the Commission's finding that even very small differences in price were important factors in competition among the company's customers. Pp. 473-474. 3. Although the price discriminations found were in sales to retailers and applicators, not in sales to wholesalers, the extension of the order to "purchasers who in fact compete" was not unreasonable, in view of the evidence that the company's classification of its customers - as wholesalers, retailers, and applicators - did not follow real functional differences. Pp. 474-475. [343 U.S. 470, 471] 4. The order does not enjoin lawful acts by reason of the Commission's failure to except from its prohibitions differentials permitted by the terms of the Act (making allowance for differences in cost of manufacture, sale or delivery, or made in good faith to meet an equally low price of a competitor), since these exceptions are necessarily implicit in every order issued under authority of the Act. Pp. 475-476. (a) However, in contesting enforcement or contempt proceedings, the seller may plead only those facts constituting statutory justification which it has not previously had an opportunity to present. Pp. 476-477. 5. The Commission is not entitled to a decree directing enforcement of an order issued under the Clayton Act in the absence of a showing that a violation of the order has occurred or is imminent. Pp. 477-480. (a) The provision of the Act authorizing the Commission to apply for enforcement "if such person fails or neglects to obey such order" prescribes a prerequisite to the court's granting enforcement. Pp. 478-479. (b) Disobedience or threatened disobedience of the order is a condition to the granting of enforcement, even where the order comes before the court upon petition for review by the affected party. Pp. 479-480. 191 F.2d 294, affirmed. Upon a petition for review of a cease-and-desist order of the Federal Trade Commission, 46 F. T. C. 379, the Court of Appeals affirmed and granted enforcement of the order. 189 F.2d 893. On rehearing, it struck from its decision that part granting enforcement. 191 F.2d 294. This Court granted certiorari. 342 U.S. 917 . Affirmed, p. 480. [Footnote * Together with No. 504, Ruberoid Co. v. Federal Trade Commission, also on certiorari to the same court. Cyrus Austin argued the cause and filed a brief for the Ruberoid Company. James W. Cassedy argued the cause for the Federal Trade Commission. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Daniel M. Friedman, Ralph S. Spritzer and W. T. Kelley. [343 U.S. 470, 472] MR. JUSTICE CLARK delivered the opinion of the Court. In this case we granted cross-petitions for certiorari to review the decree of the Court of Appeals affirming, but refusing to enforce, a cease and desist order issued by the Federal Trade Commission to the Ruberoid Co. Ruberoid is one of the nation's largest manufacturers of asphalt and asbestos roofing materials and allied products. The Commission found that Ruberoid, in a number of specific instances, had discriminated among customers in the prices charged them for roofing materials. Further finding that the effect of those discriminations "may be substantially to lessen competition in the line of commerce in which [those customers] are engaged, and to injure, destroy, or prevent competition between [those customers]," 1 the Commission held that the discriminations were violations of 2 (a) of the Clayton Act, as amended by the Robinson-Patman Act. 2 46 F. T. C. 379. Ruberoid was ordered to: "[C]ease and desist from discriminating in price: "By selling such products of like grade and quality to any purchaser at prices lower than those granted other purchasers who in fact compete with the favored purchaser in the resale or distribution of such products." 3 Upon Ruberoid's petition for review, the Court of Appeals affirmed and granted enforcement of the order. 189 F.2d 893. However, on rehearing, the Court of Appeals amended its mandate to strike that part which directed enforcement. 191 F.2d 294. We granted certiorari to review questions, important in the administration of the Clayton Act, as to the scope and enforcement of Federal Trade Commission orders. 342 U.S. 917 . [343 U.S. 470, 473] We first consider the contentions of Ruberoid, which are mainly attacks upon the breadth of the order. Orders of the Federal Trade Commission are not intended to impose criminal punishment or exact compensatory damages for past acts, but to prevent illegal practices in the future. In carrying out this function the Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past. If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its road block to the narrow lane the transgressor has traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-passed with impunity. 4 Moreover, "[t]he Commission has wide discretion in its choice of a remedy deemed adequate to cope with the unlawful practices" disclosed. Jacob Siegel Co. v. Federal Trade Comm'n, 327 U.S. 608, 611 (1946). Congress placed the primary responsibility for fashioning such orders upon the Commission, and Congress expected the Commission to exercise a special competence in formulating remedies to deal with problems in the general sphere of competitive practices. 5 Therefore we have said that "the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist." Id., at 613. In the light of these principles, we examine the specific objections of Ruberoid to the order in this case. First, it is argued that the order went too far in prohibiting all price differentials between competing purchasers, although only differentials of 5% or more were found. But the Commission found that very small differences in price [343 U.S. 470, 474] were material factors in competition among Ruberoid's customers, and Ruberoid offered no evidence to the contrary. In this state of the record the Commission was not required to limit its prohibition to the specific differential shown to have been adopted in past violations of the statute. 6 In the absence of any indication that a lesser discrimination might not affect competition there was no need to afford an escape clause through which the seller might frustrate the whole purpose of the proceedings and the order by limiting future discrimination to something less than 5%. 7 The roofing material customers of Ruberoid may be classified as wholesalers, retailers, and roofing contractors or applicators. 8 The discriminations found by the Commission were in sales to retailers and applicators. The [343 U.S. 470, 475] Commission held that there was insufficient evidence in the record to establish discrimination among wholesalers, as such. Ruberoid contends that the order should have been similarly limited to sales to retailers and applicators. But there was ample evidence that Ruberoid's classification of its customers did not follow real functional differences. Thus some purchasers which Ruberoid designated as "wholesalers" and to which Ruberoid allowed extra discounts in fact competed with other purchasers as applicators. And the Commission found that some purchasers operated as both wholesalers and applicators. So finding, the Commission disregarded these ambiguous labels, which might be used to cloak discriminatory discounts to favored customers, and stated its order in terms of "purchasers who in fact compete." Thus stated, we think the order is understandable, reasonably related to the facts shown by the evidence, and within the broad discretion which the Commission possesses in determining remedies. Finally, Ruberoid complains that the order enjoins lawful acts by failing to except from its prohibitions differentials which merely make allowance for differences in cost of manufacture, sale or delivery, or which are made in good faith to meet an equally low price of a competitor. Differences in price satisfying either of these tests are permitted by the terms of the Act. 9 It is argued that the Commission has radically broadened its prohibitory [343 U.S. 470, 476] powers through failure to include these provisos in the order. We do not think so because we think the provisos are necessarily implicit in every order issued under the authority of the Act, just as if the order set them out in extenso. Although previous Commission orders have included these provisos, they gained no force by that inclusion. Their absence cannot preclude the seller from differentiating in price in a new competitive situation involving different circumstances where it can justify the discrimination in accordance with the statutory provisos. Nor is the seller required to seek modification of the order each time, for example, that a competitor's price reduction requires it either to lower its price in good faith to meet the lower competing price or to lose a fleeting sales opportunity. On the other hand, the implied inclusion of the provisos in the order does not shift from the seller the burden of proof of justification. 10 Neither does recognition of the implicit availability of these defenses allow the seller to relitigate issues already settled by prior proceedings before the Commission which resulted in an order that was affirmed in the courts. If questions of justification, claimed upon the basis of facts relating to costs or meeting competition, have once been finally decided against the seller, it cannot again interpose the same defense upon substantially similar facts when the Commission seeks to show that its order has been violated. 11 [343 U.S. 470, 477] The same result follows where the evidence supporting the defense, although not produced in the previous proceedings, was then available to the seller. In short, the seller, in contesting enforcement or contempt proceedings, may plead only those facts constituting statutory justification which it has not had a previous opportunity to present. The sole question presented by the Commission's petition concerns the lower court's holding, with one dissent, that the Commission could not "obtain a decree directing enforcement of an order issued under the Clayton Act in the absence of showing that a violation of the order has occurred or is imminent." 12 The pertinent parts of the Act provide: "If such person [subject to the order] fails or neglects to obey such order of the commission . . . while the same is in effect, the commission . . . may apply to the circuit court of appeals of the United States . . . for the enforcement of its order . . . . [T]he court . . . shall have power to make and enter . . . a decree affirming, modifying, or setting aside the order of the commission . . . . "Any party required by such order of the commission . . . to cease and desist from a violation charged may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the commission . . . be set aside . . . . [T]he court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission . . . as in the case of an application [343 U.S. 470, 478] by the commission . . . for the enforcement of its order . . . . "The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the commission . . . shall be exclusive." 13 The Commission argues, first, that the provision authorizing it to apply for enforcement "if such person fails or neglects to obey such order" is merely "a Congressional directive to the Commission as to the circumstances under which it may go into court to seek enforcement," which does not amount to a prerequisite to the court's granting of enforcement. 14 We cannot subscribe to this argument, which disregards the unequivocal language of the statute and its consistent interpretation over the thirty-eight-year period of its existence. 15 Congress, in 1938, amended similar language in the Federal Trade Commission Act, so that the reviewing court is now plainly required, upon affirmance, to enforce an order based upon violation of that Act. 16 The Commission has [343 U.S. 470, 479] repeatedly sought similar amendment of the Clayton Act provisions involved in this case. 17 We will not now achieve the same result by reinterpretation in the face of Congress' failure to pass the bills thus brought before it. 18 Effective enforcement of the Clayton Act by the Commission may be handicapped by the present provisions, but that is a question of policy for Congress. Alternatively, the Commission argues that, even though disobedience of the order is a condition to enforcement upon the application of the Commission, there is no such condition where the order comes before the court upon petition for review by the affected party. This argument begins with the difference in language between the statutory paragraphs providing for review at the instance of the respective parties, but consideration of the section as a whole convinces us that the most that can be said for the argument is that the section is ambiguous. We think the statutory prerequisite to enforcement applies when the Commission seeks enforcement by cross-petition after review has been set in motion by the party subject to the order as well as when the Commission makes the original application. 19 There is no reason why one who has complied with the order, but who seeks to have it reviewed and modified or set aside, should be placed in a worse position than one who does not exercise that right. We [343 U.S. 470, 480] doubt that Congress intended its requirement for enforcement to depend entirely upon which party goes to court first. Affirmed. MR. JUSTICE BLACK concurs in the judgment and opinion of the Court, except that he thinks the Commission's order should expressly except from its prohibitions differentials which merely make allowances for differences in the cost of manufacture, sale, or delivery, or which are made in good faith to meet an equally low price of a competitor. MR. JUSTICE FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of this case. MR. JUSTICE DOUGLAS dissents from the denial of enforcement of the order. Footnotes [Footnote 1 46 F. T. C. 379, 386. [Footnote 2 38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. 13. [Footnote 3 46 F. T. C. 379, 387. [Footnote 4 Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 51 -52 (1948); cf. International Salt Co. v. United States, 332 U.S. 392, 398 -400 (1947). [Footnote 5 Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 726 -727 (1948); 38 Stat. 722, 15 U.S.C. 47. [Footnote 6 Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 51 -52 (1948); cf. Labor Board v. Express Publishing Co., 312 U.S. 426, 436 -437 (1941). [Footnote 7 "True, the Commission did not merely prohibit future discounts, rebates, and allowances in the exact mathematical percentages previously utilized by respondent. Had the order done no more than that, respondent could have continued substantially the same unlawful practices despite the order by simply altering the discount percentages and the quantities of salt to which the percentages applied." Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 52 -53 (1948). The discussion following these words in the Morton Salt case, of certain aspects of the order in question there, manifestly affords no support to Ruberoid's contention here. Id., at 53-54. [Footnote 8 Ruberoid suggests a fourth category of purchasers - manufacturers - and contends that the order is too broad in that it prohibits discrimination in sales to that group, e. g., in sales of shingles to competing manufacturers of prefabricated houses. We need not consider whether such an order would be too broad because we do not think the order here applies to such sales. By its terms, the order covers only sales to those competitively engaged "in the resale or distribution of such products [i. e., `asbestos or asphalt roofing materials']," and not sales to those who use roofing materials in the fabrication of wholly new and different products. [Footnote 9 "[N]othing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered. . . ." 49 Stat. 1526, 15 U.S.C. 13 (a). "[N]othing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price . . . was made in good faith to meet an equally low price of a competitor . . . ." 49 Stat. 1526, 15 U.S.C. 13 (b), Standard Oil Co. v. Federal Trade Comm'n, 340 U.S. 231 (1951). Ruberoid does not complain of the omission from the order of the statutory provisos relating to the seller's right to select its own customers and to price changes in response to changing conditions affecting the market for, or the marketability of, the goods concerned. Hence we do not deal with those defenses here. [Footnote 10 Cf. Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 44 -45 (1948) (cost justification); Federal Trade Comm'n v. A. E. Staley Mfg. Co., 324 U.S. 746 (1945) (meeting-competition justification). [Footnote 11 Where the Commission seeks both affirmance and enforcement of its order in one proceeding, contending that the seller has continued [343 U.S. 470, 477] in its unlawful practices since the order was issued, the court, in deciding whether the order should be affirmed, will of course review the determination of the Commission in the ordinary manner. But questions thus settled will not be open in deciding whether the order has been violated and should therefore be enforced. [Footnote 12 191 F.2d 294, 295. [Footnote 13 38 Stat. 735, as amended, 15 U.S.C. 21. [Footnote 14 Brief for the Federal Trade Commission in No. 448, p. 16. [Footnote 15 E. g., Federal Trade Comm'n v. Whitney & Co., 192 F.2d 746 (C. A. 9th Cir. 1951); Federal Trade Comm'n v. Standard Brands, Inc., 189 F.2d 510 (C. A. 2d Cir. 1951); Federal Trade Comm'n v. Herzog. 150 F.2d 450 (C. A. 2d Cir. 1945); Federal Trade Comm'n v. Baltimore Paint & Color Works, 41 F.2d 474 (C. A. 4th Cir. 1930); Federal Trade Comm'n v. Balme, 23 F.2d 615 (C. A. 2d Cir. 1928); Federal Trade Comm'n v. Standard Education Society, 14 F.2d 947 (C. A. 7th Cir. 1926). The last three cases cited arose under the Federal Trade Commission Act, but since the Clayton Act provisions involved here are identical with the corresponding provisions of the Federal Trade Commission Act prior to 1938, 38 Stat. 720, the decisions make no distinction between them. [Footnote 16 "To the extent that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the Commission." 52 Stat. 113, 15 U.S.C. 45 (c). Unless the party subject to an order issued under the [343 U.S. 470, 479] provisions of the Federal Trade Commission Act files a petition for review within sixty days, the order becomes final and its violation punishable. 52 Stat. 113-114, 15 U.S.C. 45 (g) and (l). [Footnote 17 E. g., Ann. Rep. F. T. C. (1951) 7-8; Ann. Rep. F. T. C. (1948) 12; Ann. Rep. F. T. C. (1947) 13; Ann. Rep. F. T. C. (1946) 12. [Footnote 18 E. g., H. R. 10176, 75th Cong., 3d Sess.; H. R. 3402, 81st Cong., 1st Sess. [Footnote 19 Accord, e. g., Federal Trade Comm'n v. Fairyfoot Products Co., 94 F.2d 844 (C. A. 7th Cir. 1938); Butterick Co. v. Federal Trade Comm'n, 4 F.2d 910 (C. A. 2d Cir. 1925); L. B. Silver Co. v. Federal Trade Comm'n, 292 F. 752 (C. A. 6th Cir. 1923). MR. JUSTICE JACKSON, dissenting in No. 504. The Federal Trade Commission, in July of 1943, instituted before itself a proceeding against petitioner on a charge of discriminating in price between customers in violation of subsection (a) of 2 of the Clayton Act as amended by the Robinson-Patman Act, approved June 19, 1936, 15 U.S.C. 13 (a). Several violations were proved and admitted to have occurred in 1941. No serious opposition was offered to an order to cease and desist from such discriminations, but petitioner did object to being ordered to cease types of violations it never had begun and asked that any order include a clause to the effect that it did not forbid the price differentials between customers which are expressly allowed by statute. [343 U.S. 470, 481] However, the Commission refused to include such a provision as "unnecessary to assure respondent [petitioner here] its full legal rights." It also rejected the specific and limited order recommended by its Examiner and substituted a sweeping general order to "cease and desist from discriminating in price: By selling such products of like grade and quality to any purchaser at prices lower than those granted other purchasers who in fact compete with the favored purchaser in the resale or distribution of such products." It wrote no opinion and gave only the most cryptic reasons in its findings. 1 On proceedings for review, petitioner attacked this order for its indeterminateness and its prohibition of differentials allowed by statute. The Court of Appeals, however, affirmed, saying: "We sympathize with the petitioner's position and can realize the difficulties of conducting business under such general prohibitions. Nevertheless we are convinced that the cause of the trouble is the Act itself, which is vague and general in its wording and which cannot be translated with assurance into any detailed set of guiding yardsticks." 2 This appraisal of the result of almost ten years of litigation exposes a grave deficiency either in the Act itself or in the administrative process by which it has been applied. Admitting that the statute is "vague and general in its wording," it does not follow that a cease and desist order implementing it should be. I think such an outcome of administrative proceedings is not acceptable. We would rectify and advance the administrative process, [343 U.S. 470, 482] which has become an indispensable adjunct to modern government, by returning this case to the Commission to perform its most useful function in administering an admittedly complicated Act. If the Court of Appeals were correct, it would mean that the intercession of the administrative process between the Congress and the Court does nothing either to define petitioner's duties and liabilities or to impose sanctions. Congress might as well have declared, in these comprehensive terms, a duty not to discriminate and provided for prosecution of violations in the courts. That, of course, would impose on the courts the task of determining the meaning and application of the law to the facts. But that is just the task that this order imposes upon the courts in event of a contempt proceeding. The courts have derived no more detailed "guiding yard-sticks" from the Commission than from Congress. On the contrary, the ultimate enforcement is further confused by the administrative proceeding, because it winds up with an order which literally forbids what the Act expressly allows and thus adds to the difficulty of eventual sanctions should they become necessary. If the unsound result here were an isolated example of malaise in the administrative scheme, its tolerance by the Court would be less troubling, though no less wrong. But I think its decision may encourage a deterioration of the administrative process of which this case is symptomatic and which invites invasion of the independent agency administrative field by executive agencies. Other symptoms, betokening the same basic confusion, are the numerous occasions when administrative findings are inadequate for purposes of review and recent instances in which part of the government appears before us fighting another part - usually a wholly executive-controlled agency attacking one of the independent administrative agencies - the Departments of Agriculture (Secretary of [343 U.S. 470, 483] Agriculture v. United States et al., No. 710, now pending in this Court) and Justice (United States v. Interstate Commerce Commission, 337 U.S. 426 ) against the Interstate Commerce Commission, the Department of Justice against the Maritime Commission (Far East Conference v. United States, 342 U.S. 570 ), the Secretary of the Interior against the Federal Power Commission (United States ex rel. Chapman v. Federal Power Commission, No. 658, now pending in this Court, certiorari granted 343 U.S. 941 ). Abstract propositions may not solve concrete cases, but, when basic confusion is responsible for a particular result, resort to the fundamental principles which determine the position of the administrative process in our system may help to illuminate the shortcomings of that result. I. The Act, like many regulatory measures, sketches a general outline which contemplates its completion and clarification by the administrative process before court review or enforcement. This section of the Act admittedly is complicated and vague in itself and even more so in its context. Indeed, the Court of Appeals seems to have thought it almost beyond understanding. By the Act, nothing is commanded to be done or omitted unconditionally, and no conduct or omission is per se punishable. The commercial discriminations which it forbids are those only which meet three statutory conditions and survive the test of five statutory provisos. To determine which of its overlapping and conflicting policies shall govern a particular case involves inquiry into grades and qualities of goods, discriminations and their economic effects on interstate commerce, competition between customers, the economic effect of price differentials to lessen competition or tend to create a monopoly, allowance for differences in cost of [343 U.S. 470, 484] manufacturing, sale or delivery and good faith in meeting of the price, services or facilities of competitors. This Act exemplifies the complexity of the modern lawmaking task and a common technique for regulatory legislation. It is typical of instances where the Congress cannot itself make every choice between possible lines of policy. It must legislate in generalities and delegate the final detailed choices to some authority with considerable latitude to conform its orders to administrative as well as legislative policies. The large importance that policy and expertise were expected to play in reducing this Act to "guiding yardsticks" is evidenced by the fact that authority to enforce the section is not confided to a single body for all industries but is dispersed among four administrative agencies which deal with special types of commerce besides the Federal Trade Commission. 3 A seller may violate this section of the Act without guilty knowledge or intent and may unwittingly subject himself to a cease and desist order. But neither violation of the Act nor of the order will call for criminal sanctions; neither is even enforceable on behalf of the United States by injunction until after an administrative proceeding has resulted in a cease and desist order and it has been reviewed and affirmed, if review be sought, by the Court of Appeals. Only an enforcement order issued from the court carries public sanctions, 4 and its violation is punishable as a contempt. [343 U.S. 470, 485] Thus Congress, in this Act, has refrained from imposition of an unconditional duty directly enforceable by the government through civil or criminal proceedings in court, as it has in the Sherman Antitrust Act and the Wilson Tariff Act of 1894. 5 It has carefully kept such cases as this out of the courts and has shielded a violator from any penalty until the administrative tribunal hands down a definitive order. The difference is accented by another section of the Robinson-Patman Act which does make participation by any person in specified transactions which discriminate "to his knowledge" a criminal violation judicially punishable. 6 It may help clarify the proper administrative function in such cases to think of the legislation as unfinished law which the administrative body must complete before it is ready for application. 7 In a very real sense the legislation [343 U.S. 470, 486] does not bring to a close the making of the law. The Congress is not able or willing to finish the task of prescribing a positive and precise legal right or duty by eliminating all further choice between policies, expediences or conflicting guides, and so leaves the rounding out of its command to another, smaller and specialized agency. It is characteristic of such legislation that it does not undertake to declare an end result in particular cases but rather undertakes to control the processes in the administrator's mind by which he shall reach results. Because Congress cannot predetermine the weight and effect of the presence or absence of all of the competing considerations or conditions which should influence decisions regulating modern business, it attempts no more than to indicate generally the outside limits of the ultimate result and to set out matters about which the administrator must think when he is determining what within those confines the compulsion in a particular case is to be. Such legislation does not confer on any of the parties in interest the right to a particular result, nor even to what we might think ought to be the correct one, but it gives them the right to a process for determining these rights and duties. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251 ; Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194 , 195. Such legislation represents inchoate law in the sense that it does not lay down rules which call for immediate compliance on pain of punishment by judicial process. The intervention of another authority must mature and perfect an effective rule of conduct before one is subject to coercion. The statute, in order to rule any individual case, requires an additional exercise of discretion and that [343 U.S. 470, 487] last touch of selection which neither the primary legislator nor the reviewing court can supply. The only reason for the intervention of an administrative body is to exercise a grant of unexpended legislative power to weigh what the legislature wants weighed, to reduce conflicting abstract policies to a concrete net remainder of duty or right. Then, and then only, do we have a completed expression of the legislative will, in an administrative order which we may call a sort of secondary legislation, ready to be enforced by the courts. II. The constitutional independence of the administrative tribunal presupposes that it will perform the function of completing unfinished law. The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. Cf. United States v. Spector, 343 U.S. 169 . They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking. Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution. The mere retreat to the qualifying "quasi" is implicit with confession that all recognized classifications have broken [343 U.S. 470, 488] down, and "quasi" is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed. The perfect example is the Federal Trade Commission itself. By the doctrine that it exercises legislative discretions as to policy in completing and perfecting the legislative process, it has escaped executive domination on the one hand and been exempted in large measure from judicial review on the other. If all it has to do is to order the literal statute faithfully executed, it would exercise a function confided exclusively to the President and would be subject to his control. Cf. Myers v. United States, 272 U.S. 52 ; U.S. Const., Art. II, 1, 3. This Court saved it from executive domination only by recourse to the doctrine that "In administering the provisions of the statute in respect of `unfair methods of competition' - that is to say in filling in and administering the details embodied by that general standard - the commission acts in part quasi-legislatively and in part quasi-judicially." Humphrey's Executor v. United States, 295 U.S. 602, 628 . When Congress enacts a statute that is complete in policy aspects and ready to be executed as law, Congress has recognized that enforcement is only an executive function and has yielded that duty to wholly executive agencies, even though determination of fact questions was necessary. 8 Examples of the creation of such rights [343 U.S. 470, 489] and obligations are patent, revenue and customs laws. Only where the law is not yet clear of policy elements and therefore not ready for mere executive enforcement is it withdrawn from the executive department and confided to independent tribunals. If the tribunal to which such discretion is delegated does nothing but promulgate as its own decision the generalities of its statutory charter, the rationale for placing it beyond executive control is gone. [343 U.S. 470, 490] III. The quasi-legislative function of filling in blank spaces in regulatory legislation and reconciling conflicting policy standards must neither be passed on to the courts nor assumed by them. That the work of a Commission in translating an abstract statute into a concrete cease and desist order in large measure escapes judicial review because of its legislative character is an axiom of administrative law, as the Court's decision herein shows. In delegating the function of filling out the legislative will in particular cases, Congress must not leave the statute too empty of meaning. Courts look to its standards to see whether the Commission's result is within the prescribed terms of reference, whether the secondary legislation properly derives from the primary legislation. Then, too, we look to administrative findings, not to reconsider their justification, but to learn whether the parties have had the process of determination to which the statute has entitled them and whether the Commission has thought about - or at least has written about - all factors which Congress directed it to consider in translating unfinished legislation into a "detailed set of guiding yardsticks" that becomes law of the case for parties and courts. 9 However, a determination by an independent agency, with "quasi-legislative" discretion in its armory, has a [343 U.S. 470, 491] much larger immunity from judicial review than does a determination by a purely executive agency. The court, in review of a case under the tax law or the patent law, where the legislative function has been exhausted and policy considerations are settled in the Acts themselves, follows the same mental operation as the executive officer. On the facts, there results an obligation to pay tax, or there is a right to a patent. The court can deduce these legal rights or obligations from the statute in the same manner as the executive officer. Hence, review of such executive decisions proceeds with no more deference to the administrative judgment than to a decision of a lower court. Very different, however, is the review of the "quasi-legislative" decision. There the right or liability of the parties is not determined by mere application of statute to the facts. The right or obligation results not merely from the abstract expression of the will of Congress in the statute, but from the Commission's completion and concretization of that will in its order. Cf. Montana-Dakota Co. v. Northwestern Public Service Co., supra, 251; Phelps Dodge Corp. v. Labor Board, supra. On review, the Court does not decide whether the correct determination has been reached. So far as the Court is concerned, a wide range of results may be equally correct. In review of such a decision, the Court does not at all follow the same mental processes as the Commission did in making it, for the judicial function excludes (in theory, at least) the policy-making or legislative element, which rightfully influences the Commission's judgment but over which judicial power does not extend. Since it is difficult for a court to determine from the record where quasi-legislative policy making has stopped and quasi-judicial application of policy has begun, the entire process escapes very penetrating scrutiny. Cf. [343 U.S. 470, 492] Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 . Courts are no better equipped to handle policy questions and no more empowered to exercise legislative discretion on contempt proceedings than on review proceedings. It is plain that, if the scheme of regulating complicated enterprises through unfinished legislation is to be just and effective, we must insist that the legislative function be performed and exhausted by the administrative body before the case is passed on to the courts. IV. This proceeding should be remanded for a more definitive and circumscribed order. Returning to this case, I cannot find that ten years of litigation have served any useful purpose whatever. No doubt it is administratively convenient to blanket an industry under a comprehensive prohibition in bulk - an undiscriminating prohibition of discrimination. But this not only fails to give the precision and concreteness of legal duties to the abstract policies of the Act, it really promulgates an inaccurate partial paraphrase of its indeterminate generalities. Instead of completing the legislation by an order which will clarify the petitioner's duty, it confounds confusion by literally ordering it to cease what the statute permits it to do. This Court and the court below defer solution of the problems inherent in such an order, on the theory that if petitioner offends again there may be an enforcement order, and if it then offends again there may be a contempt proceeding and that will be time enough for the court to decide what the order against the background of the Act really means. While I think this less than justice, I am not greatly concerned about what the Court's decision does to this individual petitioner, for whom I foresee no danger more serious than endless litigation. [343 U.S. 470, 493] But I am concerned about what it does to administrative law. To leave definition of the duties created by an order to a contempt proceeding is for the courts to end where they should begin. Injunctions are issued to be obeyed, even when justification to issue them may be debatable. United States v. United Mine Workers, 330 U.S. 258, 289 et seq., 307. But in this case issues that seem far from frivolous as to what is forbidden are reserved for determination when punishment for disobedience is sought. The Court holds that some modifications are "implicit" in this order. Why should they not be made explicit? Why approve an order whose literal terms we know go beyond the authorization, on the theory that its excesses may be retracted if ever it needs enforcement? Why invite judicial indulgence toward violation by failure to be specific, positive and concrete? It does not impress me as lawyerly practice to leave to a contempt proceeding the clarification of the reciprocal effects of this Act and order, and determination of the effect of statutory provisos which are then to be read into the order. The courts cannot and should not assume that function. It is, by our own doctrine, a legislative or "quasi-legislative" function, and the courts cannot take over the discretionary functions of the Commission which should enter into its determinations. Plainly this order is not in shape to enforce and does not become so by the Court's affirmance. This proceeding should be remanded to the Commission with directions to make its order specific and concrete, to specify the types of discount which are forbidden and reserve to petitioner the rights which the statute allows it, unless they are deemed lost, forfeited or impaired by the violations, in which case any limitation should be set forth. The Commission should, in short, in the light of its own policy and the record, translate [343 U.S. 470, 494] this Act into a "set of guiding yardsticks," admittedly now lacking. If that cannot be done, there should be no judicial approval for an order to cease and desist from we don't know what. If that were done, I should be inclined to accept the Government's argument that, along with affirmance, enforcement may be ordered. I see no real sense, when the case is already before the Court and is approved, in requiring one more violation before its obedience will be made mandatory on pain of contempt. But, as this order stands, I am not surprised that enforcement should be left to some later generation of judges. [Footnote 1 A comprehensive study has pointed out the early failure of this Commission (and it applies as well to others) to clarify and develop the law and thereby avoid litigation by careful published opinions. Henderson, The Federal Trade Commission, 334. [Footnote 2 Ruberoid Co. v. Federal Trade Commission, 189 F.2d 893, 894. [Footnote 3 15 U.S.C. 21 vests enforcement in the Interstate Commerce Commission where applicable to certain regulated common carriers; in the Federal Communications Commission as to wire and radio communications; Civil Aeronautics Board as to air carriers; Federal Reserve Board as to banks, etc., and Federal Trade Commission as to all other types of commerce. [Footnote 4 15 U.S.C. 21. [Footnote 5 15 U.S.C. 1-4, 8, 9. [Footnote 6 15 U.S.C. 13a. [Footnote 7 For emphasis and appreciation of this concept of American administrative law and of the function of the administrative tribunal as we have evolved it, I am indebted to an unpublished treatise by Dr. Robert F. Weissenstein, whose Viennese and European background, education and practice gave him a perspective attained with difficulty by us who are so accustomed to our own process. Lord Chancellor Herschell has employed a different but effective figure. "The truth is," said he, "the legislation is a skeleton piece of legislation left to be filled up in all its substantial and material particulars by the action of rules to be made by the Board of Trade. . . . it was the intention of the Legislature, having expressed the general object, and having provided the necessary penalty, to leave the subordinate legislation, so to speak, to be carried out by the Board of Trade." Institute of Patent Agents v. Lockwood, 1894. A. C. 347, 356-357. For an excellent study of English "Delegated Legislation Today" see Wills, Parliamentary Powers of English Government Departments, c. II, p. 47. For the extent to which this system has been used in England, see Lord Macmillan, Local Government Law and Administration in England and Wales, Vol. I, Preface. [Footnote 8 The legislative history of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., exemplifies the choice which Congress must make between itself completing the legislation, and delegating the completion to an administrative agency. H. R. Rep. No. 2738, 75th Cong., 3d Sess., sets forth a summary of both the House Bill and the Senate Bill. The Senate Bill provided for the creation of a Labor Standards Board composed of five members, which was empowered to declare from time to time, for such occupations as [343 U.S. 470, 489] are brought within the bill, minimum wages "which shall be as nearly adequate as economically feasible without curtailing opportunity for employment, to maintain a minimum standard of living necessary for health, efficiency, and general well-being . . ." but not in excess of 40 cents per hour. Id., at 15. Similar provisions empowered the Board to determine maximum hours, provided that in no case should the maximum be set at less than 40 hours. Id., at 16. Likewise, the Board was empowered to require the elimination of substandard labor conditions. Id., at 17. The House Bill, on the other hand, itself laid down the minimum wage and maximum hour requirements, id., 22-23, and gave to the Secretary of Labor discretion only to determine which industries were within the terms of the law, plus the power to investigate compliance with the law. Id., at 23. The Act as ultimately adopted followed the House Bill; although there was created the office of Administrator of the Wage and Hour Division in the Department of Labor, the Administrator was given discretion only in minor matters relating to the applicability of the congressional standards. 52 Stat. 1060, 29 U.S.C. 201 et seq. The Administration favored the plan of delegating legislative discretion to an independent administrative body to apply general standards to concrete cases. See testimony of Secretary of Labor Frances Perkins, Joint Hearings before the Senate Committee on Education and Labor and the House Committee on Labor on S. 2475 and H. R. 7200, 75th Cong., 1st Sess. 178. However, the attempt of Congress itself to complete this complex law for enforcement by the Executive, through the courts, not only flooded the courts with litigation, but the courts' interpretation of the Act contrary to the policy which Congress thought it had indicated had disastrous consequences. 61 Stat. 84, 29 U.S.C. 251 et seq. [Footnote 9 If the independent agencies could realize how much trustworthiness judges give to workmanlike findings and opinions and how their causes are prejudiced on review by slipshod, imprecise findings and failure to elucidate by opinion the process by which ultimate determinations have been reached, their work and their score on review would doubtless improve. See Henderson, The Federal Trade Commission, c. VI, p. 327. See also Commission on Organization of the Executive Branch of the Government, Task Force Report on Regulatory Commissions (App. N), pp. 129-130. [343 U.S. 470, 495]

liberal

organization

economic_activity

1974-105-01

United States Supreme Court BREED v. JONES(1975) No. 73-1995 Argued: Decided: May 27, 1975 The prosecution of respondent as an adult in California Superior Court, after an adjudicatory finding in Juvenile Court that he had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. Pp. 528-541. (a) Respondent was put in jeopardy at the Juvenile Court adjudicatory hearing, whose object was to determine whether he had committed acts that violated a criminal law and whose potential consequences included both the stigma inherent in that determination and the deprivation of liberty for many years. Jeopardy attached when the Juvenile Court, as the trier of the facts, began to hear evidence. Pp. 528-531. (b) Contrary to petitioner's contention, respondent's trial in Superior Court for the same offense as that for which he had been tried in Juvenile Court, violated the policies of the Double Jeopardy Clause, even if respondent "never faced the risk of more than one punishment," since the Clause "is written in terms of potential or risk of trial and conviction, not punishment." Price v. Georgia, 398 U.S. 323, 329 . Respondent was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the "heavy personal strain" that such an experience represents. Pp. 532-533. (c) If there is to be an exception to the constitutional protection against a second trial in the context of the juvenile-court system, it must be justified by interests of society, reflected in that unique institution, or of juveniles themselves, of sufficient substance to render tolerable the costs and burdens that the exception will entail in individual cases. Pp. 533-534. (d) Giving respondent the constitutional protection against multiple trials in this context will not, as petitioner claims, diminish the flexibility and informality of juvenile-court proceedings [421 U.S. 519, 520] to the extent that those qualities relate uniquely to the goals of the juvenile-court system. A requirement that transfer hearings be held prior to adjudicatory hearings does not alter the nature of the latter proceedings. More significantly, such a requirement need not affect the quality of decisionmaking at transfer hearings themselves. The burdens petitioner envisions would not pose a significant problem for the administration of the juvenile-court system, and quite apart from that consideration, transfer hearings prior to adjudication will aid the objectives of that system. Pp. 535-541. 497 F.2d 1160, vacated and remanded. BURGER, C. J., delivered the opinion for a unanimous Court. Russel Iungerich, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Kent L. Richland, Deputy Attorney General. Robert L. Walker argued the cause for respondent. With him on the brief was Peter Bull. * [Footnote * Briefs of amici curiae urging affirmance were filed by Alfred L. Scanlan for the National Council of Juvenile Court Judges; by David Gilman for the National Council on Crime and Delinquency et al.; and by Richard S. Buckley and Laurance S. Smith for the California Public Defenders Assn. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the prosecution of respondent as an adult, after Juvenile Court proceedings which resulted in a finding that respondent had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Fifth and Fourteenth Amendments to the United States Constitution. [421 U.S. 519, 521] On February 9, 1971, a petition was filed in the Superior Court of California, County of Los Angeles, Juvenile Court, alleging that respondent, then 17 years of age, was a person described by Cal. Welf. & Inst'ns Code 602 (1966), 1 in that, on or about February 8, while armed with a deadly weapon, he had committed acts which, if committed by an adult, would constitute the crime of robbery in violation of Cal. Penal Code 211 (1970). The following day, a detention hearing was held, at the conclusion of which respondent was ordered detained pending a hearing on the petition. 2 The jurisdictional or adjudicatory hearing was conducted on March 1, pursuant to Cal. Welf. & Inst'ns Code 701 (1966). 3 After taking testimony from two [421 U.S. 519, 522] prosecution witnesses and respondent, the Juvenile Court found that the allegations in the petition were true and that respondent was a person described by 602, and it sustained the petition. The proceedings were continued for a dispositional hearing, 4 pending which the court ordered that respondent remain detained. [421 U.S. 519, 523] At a hearing conducted on March 15, the Juvenile Court indicated its intention to find respondent "not . . . amenable to the care, treatment and training program available through the facilities of the juvenile court" under Cal. Welf. & Inst'ns Code 707 (Supp. 1967). 5 Respondent's counsel orally moved "to continue the [421 U.S. 519, 524] matter on the ground of surprise," contending that respondent "was not informed that it was going to be a fitness hearing." The court continued the matter for one week, at which time, having considered the report of the probation officer assigned to the case and having heard her testimony, it declared respondent "unfit for treatment as a juvenile," 6 and ordered that he be prosecuted as an adult. 7 Thereafter, respondent filed a petition for a writ of habeas corpus in Juvenile Court, raising the same double jeopardy claim now presented. Upon the denial of that petition, respondent sought habeas corpus relief in the California Court of Appeal, Second Appellate District. Although it initially stayed the criminal prosecution pending against respondent, that court denied the petition. In re Gary J., 17 Cal. App. 3d 704, 95 Cal. [421 U.S. 519, 525] Rptr. 185 (1971). The Supreme Court of California denied respondent's petition for hearing. After a preliminary hearing respondent was ordered held for trial in Superior Court, where an information was subsequently filed accusing him of having committed robbery, in violation of Cal. Penal Code 211 (1970), while armed with a deadly weapon, on or about February 8, 1971. Respondent entered a plea of not guilty, and he also pleaded that he had "already been placed once in jeopardy and convicted of the offense charged, by the judgment of the Superior Court of the County of Los Angeles, Juvenile Court, rendered . . . on the 1st day of March, 1971." App. 47. By stipulation, the case was submitted to the court on the transcript of the preliminary hearing. The court found respondent guilty of robbery in the first degree under Cal. Penal Code 211a (1970) and ordered that he be committed to the California Youth Authority. 8 No appeal was taken from the judgment of conviction. On December 10, 1971, respondent, through his mother as guardian ad litem, filed the instant petition for a writ of habeas corpus in the United States District Court for the Central District of California. In his petition he alleged that his transfer to adult court pursuant to Cal. Welf. & Inst'ns Code 707 and subsequent trial there [421 U.S. 519, 526] "placed him in double jeopardy." App. 13. The District Court denied the petition, rejecting respondent's contention that jeopardy attached at his adjudicatory hearing. It concluded that the "distinctions between the preliminary procedures and hearings provided by California law for juveniles and a criminal trial are many and apparent and the effort of [respondent] to relate them is unconvincing," and that "even assuming jeopardy attached during the preliminary juvenile proceedings . . . it is clear that no new jeopardy arose by the juvenile proceeding sending the case to the criminal court." 343 F. Supp. 690, 692 (1972). The Court of Appeals reversed, concluding that applying double jeopardy protection to juvenile proceedings would not "impede the juvenile courts in carrying out their basic goal of rehabilitating the erring youth," and that the contrary result might "do irreparable harm to or destroy their confidence in our judicial system." The court therefore held that the Double Jeopardy Clause "is fully applicable to juvenile court proceedings." 497 F.2d 1160, 1165 (CA9 1974). Turning to the question whether there had been a constitutional violation in this case, the Court of Appeals pointed to the power of the Juvenile Court to "impose severe restrictions upon the juvenile's liberty," ibid., in support of its conclusion that jeopardy attached in respondent's adjudicatory hearing. 9 It rejected petitioner's contention that no new jeopardy attached when respondent was referred to Superior Court and subsequently tried and convicted, finding "continuing jeopardy" principles [421 U.S. 519, 527] advanced by petitioner inapplicable. Finally, the Court of Appeals observed that acceptance of petitioner's position would "allow the prosecution to review in advance the accused's defense and, as here, hear him testify about the crime charged," a procedure it found offensive to "our concepts of basic, even-handed fairness." The court therefore held that once jeopardy attached at the adjudicatory hearing, a minor could not be retried as an adult or a juvenile "absent some exception to the double jeopardy prohibition," and that there "was none here." Id., at 1168. We granted certiorari because of a conflict between Courts of Appeals and the highest courts of a number of States on the issue presented in this case and similar issues and because of the importance of final resolution of the issue to the administration of the juvenile-court system. I The parties agree that, following his transfer from Juvenile Court, and as a defendant to a felony information, respondent was entitled to the full protection of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784 (1969). In addition, they agree that respondent was put in jeopardy by the proceedings on that information, which resulted in an adjudication that he was guilty of robbery in the first degree and in a sentence of commitment. Finally, there is no dispute that the petition filed in Juvenile Court and the information filed in Superior Court related to the "same offense" within the meaning of the constitutional prohibition. The point of disagreement between the parties, and the question for our decision, is whether, by reason of the proceedings in Juvenile Court, respondent was "twice put in jeopardy." [421 U.S. 519, 528] II Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution. See Price v. Georgia, 398 U.S. 323, 326 , 329 (1970); Serfass v. United States, 420 U.S. 377, 387 -389 (1975). Although the constitutional language, "jeopardy of life or limb," suggests proceedings in which only the most serious penalties can be imposed, the Clause has long been construed to mean something far broader than its literal language. See Ex parte Lange, 18 Wall. 163, 170-173 (1874). 10 At the same time, however, we have held that the risk to which the Clause refers is not present in proceedings that are not "essentially criminal." Helvering v. Mitchell, 303 U.S. 391, 398 (1938). See United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943); One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972). See also J. Sigler, Double Jeopardy 60-62 (1969). Although the juvenile-court system had its genesis in the desire to provide a distinctive procedure and setting to deal with the problems of youth, including those manifested by antisocial conduct, our decisions in recent years have recognized that there is a gap between the originally benign conception of the system and its realities. With the exception of McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the Court's response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional [421 U.S. 519, 529] criminal prosecutions. In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970). In so doing the Court has evinced awareness of the threat which such a process represents to the efforts of the juvenile-court system, functioning in a unique manner, to ameliorate the harshness of criminal justice when applied to youthful offenders. That the system has fallen short of the high expectations of its sponsors in no way detracts from the broad social benefits sought or from those benefits that can survive constitutional scrutiny. We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years. 11 For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew "the `civil' label-of-convenience which has been attached to juvenile proceedings," In re Gault, supra, at 50, and that "the juvenile process . . . be candidly appraised." 387 U.S., at 21 . See In re Winship, supra, at 365-366. As we have observed, the risk to which the term jeopardy refers is that traditionally associated with "actions intended to authorize criminal punishment to vindicate public justice." United States ex rel. Marcus v. Hess, supra, at 548-549. Because of its purpose and potential consequences, and the nature and resources of the State, [421 U.S. 519, 530] such a proceeding imposes heavy pressures and burdens - psychological, physical, and financial - on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once "for the same offense." See Green v. United States, 355 U.S. 184, 187 (1957); Price v. Georgia, 398 U.S., at 331 ; United States v. Jorn, 400 U.S. 470, 479 (1971) (opinion of Harlan, J.). In In re Gault, supra, at 36, this Court concluded that, for purposes of the right to counsel, a "proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." See In re Winship, supra, at 366. The Court stated that the term "delinquent" had "come to involve only slightly less stigma than the term `criminal' applied to adults," In re Gault, supra, at 24; see In re Winship, supra, at 367, and that, for purposes of the privilege against self-incrimination, "commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called `criminal' or `civil.'" In re Gault, supra, at 50. See 387 U.S., at 27 ; In re Winship, supra, at 367. 12 Thus, in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of "anxiety and insecurity" [421 U.S. 519, 531] in a juvenile, and imposes a "heavy personal strain." See Green v. United States, supra, at 187; United States v. Jorn, supra, at 479; Snyder, The Impact of the Juvenile Court Hearing on the Child, 17 Crime & Delinquency 180 (1971). And we can expect that, since our decisions implementing fundamental fairness in the juvenile-court system, hearings have been prolonged, and some of the burdens incident to a juvenile's defense increased, as the system has assimilated the process thereby imposed. See Note, Double Jeopardy and the Waiver of Jurisdiction in California's Juvenile Courts, 24 Stan. L. Rev. 874, 902 n. 138 (1972). Cf. Canon & Kolson, Rural Compliance with Gault: Kentucky, A Case Study, 10 J. Fam. L. 300, 320-326 (1971). We deal here, not with "the formalities of the criminal adjudicative process," McKeiver v. Pennsylvania, 403 U.S., at 551 (opinion of BLACKMUN, J.), but with an analysis of an aspect of the juvenile-court system in terms of the kind of risk to which jeopardy refers. Under our decisions we can find no persuasive distinction in that regard between the proceeding conducted in this case pursuant to Cal. Welf. & Inst'ns Code 701 (1966) and a criminal prosecution, each of which is designed "to vindicate [the] very vital interest in enforcement of criminal laws." United States v. Jorn, supra, at 479. We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was "put to trial before the trier of the facts," 400 U.S., at 479 , that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U.S., at 388 . 13 [421 U.S. 519, 532] III Petitioner argues that, even assuming jeopardy attached at respondent's adjudicatory hearing, the procedure by which he was transferred from Juvenile Court and tried on a felony information in Superior Court did not violate the Double Jeopardy Clause. The argument is supported by two distinct, but in this case overlapping, lines of analysis. First, petitioner reasons that the procedure violated none of the policies of the Double Jeopardy Clause or that, alternatively, it should be upheld by analogy to those cases which permit retrial of an accused who has obtained reversal of a conviction on appeal. Second, pointing to this Court's concern for "the juvenile court's assumed ability to function in a unique manner," McKeiver v. Pennsylvania, supra, at 547, petitioner urges that, should we conclude traditional principles "would otherwise bar a transfer to adult court after a delinquency adjudication," we should avoid that result here because it "would diminish the flexibility and informality of juvenile court proceedings without conferring any additional due process benefits upon juveniles charged with delinquent acts." A We cannot agree with petitioner that the trial of respondent in Superior Court on an information charging the same offense as that for which he had been tried in Juvenile Court violated none of the policies of the Double Jeopardy Clause. For, even accepting petitioner's premise that respondent "never faced the risk of more than one punishment," we have pointed out that "the Double Jeopardy Clause . . . is written in terms of potential or risk of trial and conviction, not punishment." Price v. Georgia, 398 U.S., at 329 . (Emphasis added.) And we have recently noted: "The policy of avoiding multiple trials has been [421 U.S. 519, 533] regarded as so important that exceptions to the principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution or the defendant. . . . It was not until 1896 that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no similar right. . . . Following the same policy, the Court has granted the Government the right to retry a defendant after a mistrial only where `there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' United States v. Perez, 9 Wheat. 579, 580 (1824)." United States v. Wilson, 420 U.S. 332 , 343-344 (1975). (Footnote omitted.) Respondent was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the "heavy personal strain" which such an experience represents. United States v. Jorn, 400 U.S., at 479 . We turn, therefore, to inquire whether either traditional principles or "the juvenile court's assumed ability to function in a unique manner," McKeiver v. Pennsylvania, supra, at 547, supports an exception to the "constitutional policy of finality" to which respondent would otherwise be entitled. United States v. Jorn, supra, at 479. B In denying respondent's petitions for writs of habeas corpus, the California Court of Appeal first, and the United States District Court later, concluded that no new jeopardy arose as a result of his transfer from Juvenile Court and trial in Superior Court. See In re Gary J., 17 Cal. App. 3d, at 710, 95 Cal. Rptr., at 189; 343 F. Supp., at 692. In the view of those courts, the jeopardy that attaches at an adjudicatory hearing [421 U.S. 519, 534] continues until there is a final disposition of the case under the adult charge. See also In re Juvenile, 364 Mass. 531, 306 N. E. 2d 822 (1974). Cf. Bryan v. Superior Court, 7 Cal. 3d 575, 498 P.2d 1079 (1972), cert. denied, 410 U.S. 944 (1973). The phrase "continuing jeopardy" describes both a concept and a conclusion. As originally articulated by Mr. Justice Holmes in his dissent in Kepner v. United States, 195 U.S. 100, 134 -137 (1904), the concept has proved an interesting model for comparison with the system of constitutional protection which the Court has in fact derived from the rather ambiguous language and history of the Double Jeopardy Clause. See United States v. Wilson, supra, at 351-352. Holmes' view has "never been adopted by a majority of this Court." United States v. Jenkins, 420 U.S. 358, 369 (1975). The conclusion, "continuing jeopardy," as distinguished from the concept, has occasionally been used to explain why an accused who has secured the reversal of a conviction on appeal may be retried for the same offense. See Green v. United States, 355 U.S., at 189 ; Price v. Georgia, 398 U.S., at 326 ; United States v. Wilson, supra, at 343-344, n. 11. Probably a more satisfactory explanation lies in analysis of the respective interests involved. See United States v. Tateo, 377 U.S. 463, 465 -466 (1964); Price v. Georgia, supra, at 329 n. 4; United States v. Wilson, supra. Similarly, the fact that the proceedings against respondent had not "run their full course," Price v. Georgia, supra, at 326, within the contemplation of the California Welfare and Institutions Code, at the time of transfer, does not satisfactorily explain why respondent should be deprived of the constitutional protection against a second trial. If there is to be an exception to that protection in the context of the juvenile-court system, it must be justified by interests of society, reflected in that unique institution, [421 U.S. 519, 535] or of juveniles themselves, of sufficient substance to render tolerable the costs and burdens, noted earlier, which the exception will entail in individual cases. C The possibility of transfer from juvenile court to a court of general criminal jurisdiction is a matter of great significance to the juvenile. See Kent v. United States, 383 U.S. 541 (1966). At the same time, there appears to be widely shared agreement that not all juveniles can benefit from the special features and programs of the juvenile-court system and that a procedure for transfer to an adult court should be available. See, e. g., National Advisory Commission on Criminal Justice Standards and Goals, Courts, Commentary to Standard 14.3, pp. 300-301 (1973). This general agreement is reflected in the fact that an overwhelming majority of jurisdictions permits transfer in certain circumstances. 14 As might be expected, the statutory provisions differ in numerous details. Whatever their differences, however, such transfer provisions represent an attempt to impart to the juvenile-court system the flexibility needed to deal with youthful offenders who cannot benefit from the specialized guidance and treatment contemplated by the system. We do not agree with petitioner that giving respondent the constitutional protection against multiple trials in this context will diminish flexibility and informality to the extent that those qualities relate uniquely to the goals of the juvenile-court system. 15 We [421 U.S. 519, 536] agree that such a holding will require, in most cases, that the transfer decision be made prior to an adjudicatory hearing. To the extent that evidence concerning the alleged offense is considered relevant, 16 it may be that, in those cases where transfer is considered and rejected, some added burden will be imposed on the juvenile courts by reason of duplicative proceedings. Finally, the nature of the evidence considered at a transfer hearing may in [421 U.S. 519, 537] some States require that, if transfer is rejected, a different judge preside at the adjudicatory hearing. 17 We recognize that juvenile courts, perhaps even more than most courts, suffer from the problems created by spiraling caseloads unaccompanied by enlarged resources and manpower. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 7-8 (1967). And courts should be reluctant to impose on the juvenile-court system any additional requirements which could so strain its resources as to endanger its unique functions. However, the burdens that petitioner envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy. A requirement that transfer hearings be held prior to adjudicatory hearings affects not at all the nature of the latter proceedings. More significantly, such a requirement need not affect the quality of decisionmaking at transfer hearings themselves. In Kent v. United States, 383 U.S., at 562 , the Court held that hearings under the statute there involved "must measure up to the essentials of due process and fair treatment." However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court [421 U.S. 519, 538] system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings. 18 Moreover, we are not persuaded that the burdens petitioner envisions would pose a significant problem for the administration of the juvenile-court system. The large number of jurisdictions that presently require that the transfer decision be made prior to an adjudicatory hearing, 19 and the absence of any indication that the juvenile courts in those jurisdictions have not been able to perform their task within that framework, suggest the contrary. The likelihood that in many cases the lack of need or basis for a transfer hearing can be recognized promptly reduces the number of cases in which a commitment of resources is necessary. In addition, we have no reason to believe that the resources [421 U.S. 519, 539] available to those who recommend transfer or participate in the process leading to transfer decisions are inadequate to enable them to gather the information relevant to informed decision prior to an adjudicatory hearing. See generally State v. Halverson, 192 N. W. 2d 765, 769 (Iowa 1971); Rudstein, Double Jeopardy in Juvenile Proceedings, 14 Wm. & Mary L. Rev. 266, 305-306 (1972); Note, 24 Stan. L. Rev., at 897-899. 20 To the extent that transfer hearings held prior to adjudication result in some duplication of evidence if transfer is rejected, the burden on juvenile courts will tend to be offset somewhat by the cases in which, because of transfer, no further proceedings in juvenile court are required. Moreover, when transfer has previously been rejected, juveniles may well be more likely to admit the commission of the offense charged, thereby obviating the need for adjudicatory hearings, than if transfer remains a possibility. Finally, we note that those States which presently require a different judge to preside at an adjudicatory hearing if transfer is rejected also permit waiver of that requirement. 21 Where the requirement is not waived, it is difficult to see a substantial strain on judicial resources. See Note, 24 Stan. L. Rev., at 900-901. [421 U.S. 519, 540] Quite apart from our conclusions with respect to the burdens on the juvenile-court system envisioned by petitioner, we are persuaded that transfer hearings prior to adjudication will aid the objectives of that system. What concerns us here is the dilemma that the possibility of transfer after an adjudicatory hearing presents for a juvenile, a dilemma to which the Court of Appeals alluded. See supra, at 527. Because of that possibility, a juvenile, thought to be the beneficiary of special consideration, may in fact suffer substantial disadvantages. If he appears uncooperative, he runs the risk of an adverse adjudication, as well as of an unfavorable dispositional recommendation. 22 If, on the other hand, he is cooperative, he runs the risk of prejudicing his chances in adult court if transfer is ordered. We regard a procedure that results in such a dilemma as at odds with the goal that, to the extent fundamental fairness permits, adjudicatory hearings be informal and nonadversary. See In re Gault, 387 U.S., at 25 -27; In re Winship, 397 U.S., at 366 -367; McKeiver v. Pennsylvania, 403 U.S., at 534 , 550. Knowledge of the risk of transfer after an adjudicatory hearing can only undermine the potential for informality and cooperation which was intended to be the hallmark of the juvenile-court system. Rather than concerning themselves with the matter at hand, establishing innocence or seeking a disposition best suited to individual [421 U.S. 519, 541] correctional needs, the juvenile and his attorney are pressed into a posture of adversary wariness that is conducive to neither. Cf. Kay & Segal, The Role of the Attorney in Juvenile Court Proceedings: A Non-Polar Approach, 61 Geo. L. J. 1401 (1973); Carr, The Effect of the Double Jeopardy Clause on Juvenile Proceedings, 6 U. Tol. L. Rev. 1, 52-54 (1974). 23 IV We hold that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The mandate of the Court of Appeals, which was stayed by that court pending our decision, directs the District Court "to issue a writ of habeas corpus directing the state court, within 60 days, to vacate the adult conviction of Jones and either set him free or remand him to the juvenile court for disposition." Since respondent is no longer subject to the jurisdiction of the California Juvenile Court, we vacate the judgment and remand the case to the Court of Appeals for such further proceedings consistent with this opinion as may be appropriate in the circumstances. So ordered. Footnotes [Footnote 1 As of the date of filing of the petition in this case, Cal. Welf. & Inst'ns Code 602 (1966) provided: "Any person under the age of 21 years who violates any law of this State or of the United States or any ordinance of any city or county of this State defining crime or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court." An amendment in 1971, not relevant here, lowered the jurisdictional age from 21 to 18. 1971 Cal. Stats. 3766, c. 1748, 66. [Footnote 2 See Cal. Welf. & Inst'ns Code 632, 635, 636 (1966). The probation officer was required to present a prima facie case that respondent had committed the offense alleged in the petition. In re William M., 3 Cal. 3d 16, 473 P.2d 737 (1970). Respondent was represented by court-appointed counsel at the detention hearing and thereafter. [Footnote 3 At the time of the hearing, Cal. Welf. & Inst'ns Code 701 (1966) provided: "At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may [421 U.S. 519, 522] be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, and a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Sections 600 or 601. When it appears that the minor has made an extrajudicial admission or confession and denies the same at the hearing, the court may continue the hearing for not to exceed seven days to enable the probation officer to subpoena witnesses to attend the hearing to prove the allegations of the petition. If the minor is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made." (Emphasis added.) A 1971 amendment substituted "proof beyond a reasonable doubt supported by evidence" for the language in italics. 1971 Cal. Stats. 1832, c. 934, 1. Respondent does not claim that the standard of proof at the hearing failed to satisfy due process. See In re Winship, 397 U.S. 358 (1970); DeBacker v. Brainard, 396 U.S. 28, 31 (1969). Hereafter, the 701 hearing will be referred to as the adjudicatory hearing. [Footnote 4 At the time, Cal. Welf. & Inst'ns Code 702 (Supp. 1968) provided: "After hearing such evidence, the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Sections 600, 601, or 602. If it finds that the minor is not such a person, it shall order that the petition be dismissed and the minor be discharged from any detention or restriction theretofore ordered. If the court finds that the minor is such a person, it shall make and enter its findings and order accordingly and shall then proceed to hear evidence on the question of the proper disposition to be made of the minor. Prior to doing so, it may continue the hearing, if necessary, to receive the social study of the probation officer or to receive other evidence on its own motion or the motion of a parent or guardian for not to exceed 10 judicial days if the minor is detained during such continuance, and if the minor is not detained, it may continue the hearing to a date not later than 30 days after the date of filing of the petition. The court may, for good cause shown continue the hearing for an additional 15 days, if the minor is not detained. The court may make such order for detention of the minor or his release from detention, during the period of the continuance, as is appropriate." [Footnote 5 At the time, Cal. Welf. & Inst'ns Code 707 (Supp. 1967) provided: "At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that the minor was 16 years of age or older at the time of the alleged commission of such offense and that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, or if, at any time after such hearing, a minor who was 16 years of age or older at the time of the commission of an offense and who was committed therefor by the court to the Youth Authority, is returned to the court by the Youth Authority pursuant to Section 780 or 1737.1, the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter, and the court shall direct the district attorney or other appropriate prosecuting officer to prosecute the person under the applicable criminal statute or ordinance and thereafter dismiss the petition or, if a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are held, shall dismiss the petition and issue its order directing that the other court proceedings resume. "In determining whether the minor is a fit and proper subject to be dealt with under this chapter, the offense, in itself, shall not be sufficient to support a finding that such minor is not a fit and [421 U.S. 519, 524] proper subject to be dealt with under the provisions of the Juvenile Court Law. "A denial by the person on whose behalf the petition is brought of any or all of the facts or conclusions set forth therein or of any inference to be drawn therefrom is not, of itself, sufficient to support a finding that such person is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law. "The court shall cause the probation officer to investigate and submit a report on the behavioral patterns of the person being considered for unfitness." [Footnote 6 The Juvenile Court noted: "This record I have read is one of the most threatening records I have read about any Minor who has come before me. "We have, as a matter of simple fact, no less than three armed robberies, each with a loaded weapon. The degree of delinquency which that represents, the degree of sophistication which that represents and the degree of impossibility of assistance as a juvenile which that represents, I think is overwhelming . . . ." App. 33. [Footnote 7 In doing so, the Juvenile Court implicitly rejected respondent's double jeopardy argument, made at both the original 702 hearing and in a memorandum submitted by counsel prior to the resumption of that hearing after the continuance. [Footnote 8 The authority for the order of commitment derived from Cal. Welf. & Inst'ns Code 1731.5 (Supp. 1971). At the time of the order, Cal. Welf. & Inst'ns Code 1771 (1966) provided: "Every person convicted of a felony and committed to the authority shall be discharged when such person reaches his 25th birthday, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800) or unless a petition is filed under Article 5 of this chapter. In the event such a petition under Article 5 is filed, the authority shall retain control until the final disposition of the proceeding under Article 5." [Footnote 9 In reaching this conclusion, the Court of Appeals also relied on Fain v. Duff, 488 F.2d 218 (CA5 1973), cert. pending, No. 73-1768, and Richard M. v. Superior Court, 4 Cal. 3d 370, 482 P.2d 664 (1971), and it noted that "California concedes that jeopardy attaches when the juvenile is adjudicated a ward of the court." 497 F.2d, at 1166. [Footnote 10 Distinctions which in other contexts have proved determinative of the constitutional rights of those charged with offenses against public order have not similarly confined the protection of the Double Jeopardy Clause. Compare Robinson v. Neil, 409 U.S. 505 (1973), with Baldwin v. New York, 399 U.S. 66 (1970), and Argersinger v. Hamlin, 407 U.S. 25 (1972). For the details of Robinson's trial for violating a city ordinance, see Robinson v. Henderson, 268 F. Supp. 349 (ED Tenn. 1967), aff'd, 391 F.2d 933 (CA6 1968). [Footnote 11 At the time of respondent's dispositional hearing, permissible dispositions included commitment to the California Youth Authority until he reached the age of 21 years. See Cal. Welf. & Inst'ns Code 607, 731 (1966). Petitioner has conceded that the "adjudicatory hearing is, in every sense, a court trial." Tr. of Oral Arg. 4. [Footnote 12 Nor does the fact "that the purpose of the commitment is rehabilitative and not punitive . . . change its nature. . . . Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Incarceration of adults is also intended to produce rehabilitation." Fain v. Duff, 488 F.2d, at 225. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 8-9 (1967). [Footnote 13 The same conclusion was reached by the California Court of Appeal in denying respondent's petition for a writ of habeas corpus. In re Gary J., 17 Cal. App. 3d 704, 710, 95 Cal. Rptr. 185, 189 (1971). [Footnote 14 See generally Task Force Report, supra, n. 12, at 24-25. See also Rudstein, Double Jeopardy in Juvenile Proceedings, 14 Wm. & Mary L. Rev. 266, 297-300 (1972); Carr, The Effect of the Double Jeopardy Clause on Juvenile Proceedings, 6 U. Tol. L. Rev. 1, 21-22 (1974). [Footnote 15 That the flexibility and informality of juvenile proceedings are [421 U.S. 519, 534] diminished by the application of due process standards is not open to doubt. Due process standards inevitably produce such an effect, but that tells us no more than that the Constitution imposes burdens on the functioning of government and especially of law enforcement institutions. [Footnote 16 Under Cal. Welf. & Inst'ns Code 707 (1972), the governing criterion with respect to transfer, assuming the juvenile is 16 years of age and is charged with a violation of a criminal statute or ordinance, is amenability "to the care, treatment and training program available through the facilities of the juvenile court." The section further provides that neither "the offense, in itself" nor a denial by the juvenile of the facts or conclusions set forth in the petition shall be "sufficient to support a finding that [he] is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law." See n. 5, supra. The California Supreme Court has held that the only factor a juvenile court must consider is the juvenile's "behavior pattern as described in the probation officer's report," Jimmy H. v. Superior Court, 3 Cal. 3d 709, 714, 478 P.2d 32, 35 (1970), but that it may also consider, inter alia, the nature and circumstances of the alleged offense. See id., at 716, 478 P.2d, at 36. In contrast to California, which does not require any evidentiary showing with respect to the commission of the offense, a number of jurisdictions require a finding of probable cause to believe the juvenile committed the offense before transfer is permitted. See Rudstein, supra, n. 14, at 298-299; Carr, supra, n. 14, at 21-22. In addition, two jurisdictions appear presently to require a finding of delinquency before the transfer of a juvenile to adult court. Ala. Code, Tit. 13, 364 (1959) (see Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970)); W. Va. Code Ann. 49-5-14 (1966). [Footnote 17 See, e. g., Fla. Stat. Ann. 39.09 (2) (g) (1974); Tenn. Code. Ann. 37-234 (e) (Supp. 1974); Wyo. Stat. 14-115.38 (c) (Supp. 1973); Uniform Juvenile Court Act 34 (e), approved in July 1968 by the National Conference of Commissioners on Uniform State Laws. See also Donald L. v. Superior Court, 7 Cal. 3d 592, 598, 498 P.2d 1098, 1101 (1972). [Footnote 18 We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding. See Collins v. Loisel, 262 U.S. 426 429 (1923); Serfass v. United States, 420 U.S. 377, 391 -392 (1975). The instant case is not one in which the judicial determination was simply a finding of, e. g., probable cause. Rather, it was an adjudication that respondent had violated a criminal statute. [Footnote 19 See Rudstein, supra, n. 14, at 299-300; Carr, supra, n. 14, at 24, 57-58. See also Uniform Juvenile Court Act 34 (a), (c); Council of Judges of the Nat. Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 9 (1969); W. Sheridan, Legislative Guide for Drafting Family and Juvenile Court Acts 27, 31 (a) (Dept. of HEW, Children's Bureau Pub. No. 472-1969). In contrast, apparently only three States presently require that a hearing on the juvenile petition or complaint precede transfer. Ala. Code, Tit. 13, 364 (1959) (see Rudolph v. State, supra); Mass. Gen. Laws Ann., c. 119, 61 (1969) (see In re Juvenile, 364 Mass. 531, 542, and n. 10, 306 N. E. 2d 822, 829-830, and n. 10 (1974)); W. Va. Code Ann. 49-5-14 (1966). [Footnote 20 We intimate no views concerning the constitutional validity of transfer following the attachment of jeopardy at an adjudicatory hearing where the information which forms the predicate for the transfer decision could not, by the exercise of due diligence, reasonably have been obtained previously. Cf., e. g., Illinois v. Somerville, 410 U.S. 458 (1973). [Footnote 21 See the statutes cited in n. 16, supra. "The reason for this waiver provision is clear. A juvenile will ordinarily not want to dismiss a judge who has refused to transfer him to a criminal court. There is a risk of having another judge assigned to the case who is not as sympathetic. Moreover, in many cases, a rapport has been established between the judge and the juvenile, and the goal of rehabilitation is well on its way to being met." Brief for National Council of Juvenile Court Judges as Amicus Curiae 38. [Footnote 22 Although denying respondent's petition for a writ of habeas corpus, the judge of the Juvenile Court noted: "If he doesn't open up with a probation officer there is of course the danger that the probation officer will find that he is so uncooperative that he cannot make a recommendation for the kind of treatment you think he really should have and, yet, as the attorney worrying about what might happen a[t] the disposition hearing, you have to advise him to continue to more or less stand upon his constitutional right not to incriminate himself . . . ." App. 38. See Note, Double Jeopardy and the Waiver of Jurisdiction in California's Juvenile Courts, 24 Stan. L. Rev. 874, 902 n. 137 (1972). [Footnote 23 With respect to the possibility of "making the juvenile proceedings confidential and not being able to be used against the minor," the judge of the Juvenile Court observed: "I must say that doesn't impress me because if the minor admitted something in the Juvenile Court and named his companions nobody is going to eradicate from the minds of the district attorney or other people the information they obtained." App. 41-42. [421 U.S. 519, 542]

liberal

other

civil_rights

1950-036-01

United States Supreme Court UNITED STATES v. TEXAS & PAC. CO.(1951) No. 38 Argued: Decided: February 26, 1951 Under 213 (now 5) of the Interstate Commerce Act, providing for the acquisition of operating rights from other carriers, and under 207, providing for new operations, the Interstate Commerce Commission had issued certificates of convenience and necessity to a motor carrier affiliate of a railroad. In each of the certificates, the Commission reserved the right to impose further restrictions to confine the motor carrier's operations to service "auxiliary to, or supplemental of, rail service." Held: The Commission had power, in subsequent proceedings, to modify the certificates so as in substance to bar the motor carrier from issuing its own bills of lading or performing all-motor service under all-motor local rates or all-motor joint rates with connecting motor carriers, from substituting rail service for motor service, and from participating in motor-carrier tariffs. United States v. Rock Island Motor Transit Co., ante, p. 419. Pp. 451-458. 1. The action of the Commission in thus modifying the certificates was not invalid as in conflict with 216 of the Transportation Act of 1940; nor invalid as not complying with the revocation procedure prescribed by 212 of the Interstate Commerce Act; nor unconstitutional as confiscatory. Pp. 457-458. 2. In a certificate issued to a motor-carrier affiliate of a railroad, the Commission may reserve the right to impose further restrictions to confine the motor carrier's operations to service which is auxiliary to, and supplemental of, rail service, whether the certificate be issued under 207 for a new operation or in acquisition proceedings under 5 and 213. Pp. 458-459. [340 U.S. 450, 451] 3. The order of the Commission was not without support in the evidence. Pp. 459-460. 4. In the hearing by the Commission, the motor carrier was not denied procedural due process. Pp. 460-461. 87 F. Supp. 107, reversed. [Footnote * Together with No. 39, Regular Common Carrier Conference of American Trucking Associations, Inc. v. Texas & Pacific Motor Transport Co., also on appeal to the same court. In a proceeding to set aside two orders of the Interstate Commerce Commission, the three-judge District Court set aside the orders and entered a permanent injunction. 87 F. Supp. 107. The United States and the Interstate Commerce Commission (No. 38) and an intervenor (No. 39) appealed. Reversed, p. 461. Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellants in No. 38. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Underhill and H. L. Underwood. Frank C. Brooks argued the cause and filed a brief for appellant in No. 39. J. T. Suggs argued the cause for appellee. With him on the brief were R. Granville Curry, W. O. Reed, Claude Williams, Robert Thompson and D. L. Case. MR. JUSTICE REED delivered the opinion of the Court. These appeals, by the Interstate Commerce Commission, and by the intervenor, Regular Common Carrier Conference of American Trucking Associations, Inc., from the judgment of a three-judge federal district court setting aside two orders of the Interstate Commerce Commission, and entering a permanent injunction, raise questions similar to those discussed in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, decided today. The questions relate to the power of the Commission to ban service practices theretofore permitted under certificates of public convenience and necessity previously issued [340 U.S. 450, 452] to a common carrier by motor vehicle. The Commission acted under authority reserved in the certificate to impose additional restrictions to insure that the motor carrier's operations will be auxiliary to or supplemental of the operations of its parent common carrier by rail. The Texas and Pacific Motor Transport Company is a wholly owned subsidiary of the Texas and Pacific Railway, operating a system of regular routes for the carriage of freight, from New Orleans to El Paso, Texas, and Lovington, New Mexico, roughly paralleling the lines of the railway and its subsidiaries. Transport was organized in 1929 to provide a local pick-up and delivery service in connection with rail transportation between points on the lines of the railway. Its first over-the-road common-carrier operation, between Monahans, Texas, and Lovington, New Mexico, was inaugurated just before the effective date of the Motor Carrier Act of 1935. It extended its operations by obtaining certificates of convenience and necessity from the Commission, both under 213 of the 1935 Act, now 5 of the Interstate Commerce Act, providing for acquisition of established rights by purchase from other carriers ("grandfather" rights); and under 207 of the Interstate Commerce Act, providing for new operations. Between July 1939 and November 1942, the Commission issued sixteen certificates to Transport, covering various segments of its presently operating routes. 1 In all the certificates the Commission reserved the right to [340 U.S. 450, 453] impose further restrictions in order to confine Transport's operation to service "auxiliary to, or supplemental of, rail service." This condition was expressed in either one of the two forms set out in the margin. 2 In addition, each certificate contained one or more, usually more, further conditions: (1) That the service to be performed was to be "auxiliary to, or supplemental of" the rail service. 3 (2) That only railway station points were to be served. 4 (3) Either that (a) all shipments should be made on a through rail bill of lading, including a prior or subsequent rail movement; 5 or (b) that no shipments should be made between certain "key points" on the rail line, or through [340 U.S. 450, 454] more than one of them. 6 And (4) that the contractual arrangements between Transport and Railway be subject to modification by the Commission. 7 The irregular incidence of these conditions in the certificates may be accounted for by the segmentary fashion in which Transport built up its system of routes, over a period of several years. They were not reconsidered as a group by the Commission until 1943, when, in response to a petition by Transport, to determine what modification should be made in its certificate No. MC-50544 (Sub-No. 11), particularly in regard to service for freight between El Paso and Sierra Blanca, Texas, for the Texas and New Orleans Railroad Company, it reopened nine of the certificate proceedings to consider whether Transport could join with other motor carriers in rates, some of which provided for substituting rail service for motor service. The Commission held that "Since petitioner's certificates limit the service to be performed to that which is auxiliary to or supplemental of the rail service of the railway [in some the limitation was by reservation], it is without authority to engage in operations unconnected with the rail service and, accordingly, may not properly be a party to tariffs containing all-motor or joint rates, nor participate in a directory providing for the substitution of train service for motor-vehicle service at its option. [340 U.S. 450, 455] To the extent petitioner is performing or participating in all-motor movements on the bills of lading of a motor carrier and at all-motor rates, it is performing a motor service in competition with the rail service and the service of existing motor carriers; and, to the extent it is substituting rail service for motor-vehicle service, the rail service is auxiliary to or supplemental of the motor-vehicle service rather than the motor-vehicle service being auxiliary to or supplemental of rail service." 8 The Commission did not issue any affirmative order, but directed Transport to modify its service in accordance with the findings, within a reasonable time. Transport and Railway then petitioned jointly for reconsideration, or for further hearings, including hearings on certain other certificates; and, although the two petitioners later attempted to withdraw their petition on the ground that permission to file a joint tariff had been granted, the Commission nevertheless ordered that the proceedings be reopened in all sixteen certificates, and three Temporary Authorities, "solely to determine what, if any, changes or modifications should be made in the conditions contained in the outstanding certificates of public convenience and necessity . . . ." After a hearing at which Transport and Railway appeared, but refused to introduce any evidence, and after oral argument on the examiner's report, the Commission on January 22, 1948, ordered that all sixteen certificates be modified to include uniformly the substance of the five conditions set out above, specifically as follows: "1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, the train service of The Texas and Pacific Railway Company, The Weatherford, Mineral [340 U.S. 450, 456] Wells and Northwestern Railway Company, or Texas-New Mexico Railway Company, and, between El Paso and Sierra Blanca, Tex., the train service of Texas and New Orleans Railroad Company, hereinafter called the railways. "2. Applicant shall not render any service to or from any point not a station on a rail line of the railways. "3. No shipments shall be transported by applicant between any of the following points, or through, or to, or from, more than one of said points: New Orleans, Alexandria, and Shreveport, La., Texarkana, Tex.-Ark., Fort Worth-Dallas, (considered as one), Abilene, Monahans, and El Paso, Tex. "4. All contractual arrangements between applicant and the railways shall be reported to us and shall be subject to revision if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties. "5. Such further specific conditions as in the future we may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, the train service of the railways." 9 The effect on appellee was to bar it from issuing its own bills of lading or performing all-motor service under all-motor local rates or all-motor joint rates with connecting motor carriers, or substituting rail service for motor service, and it could not be a party to such tariffs. 10 Prior to these proceedings the appellee had issued its own bills of lading and participated in motor-carrier tariffs. The [340 U.S. 450, 457] District Court found the value of the certificates, $65,000, would be destroyed and $240,000 annual revenue lost. A petition for reconsideration of this order, and for oral argument before the entire Commission, was denied on May 9, 1949. Transport thereupon brought this suit in the Federal District Court, seeking to set aside the Commission's orders of January 22, 1948, and May 9, 1949, and to enjoin their enforcement. In the District Court proceedings the Regular Common Carrier Conference of American Trucking Associations intervened on behalf of the Commission. After hearing, the District Court made findings of fact and conclusions of law, and entered a judgment setting aside the Commission's orders, and permanently enjoining it from imposing any condition on Transport's certificates "in such manner as will prohibit petitioner from: "a. Filing, publishing and maintaining common carrier motor rates as provided by statute in the case of common carrier motor carriers generally; "b. Interchanging traffic with other common carrier motor carriers on joint motor rates; "c. Issuing its own bills of lading and tendering its service to the public generally on its own contracts of shipment; "d. Transporting traffic to, through, from or between any so-called `key points' on that part of its route covered by interstate certificates of public convenience and necessity, to which no `key point' restriction attached on issuance of such certificates, or in such manner as will restrict petitioner to ship on rail rates or on railroad bills of lading." From this judgment the Commission and the intervenor, Common Carrier Conference, appeal here. The District Court, 87 F. Supp. 107, 112, reasoned that the operations of Transport were at all times and in all [340 U.S. 450, 458] ways auxiliary to and supplemental of the rail operations and therefore could not be restricted as attempted. The connotation of auxiliary and supplementary to the trial court was only a restriction limiting service to rail points. Without dealing specifically with the reservation to impose further conditions restricting the motor carrier's service to coordinated rail service, the District Court decided that the Commission's order restricting the service could not be valid in view of 216, Transportation Act of 1940, 49 Stat. 558, 54 Stat. 924. That section allows motor common carriers to establish through routes, joint rates, practices and division of charges with other carriers by motor, rail or water. 11 It held, too, that the Commission's action was in essence a revocation in part of a certificate and unlawful except under conditions prescribed by 212, 49 Stat. 555, 54 Stat. 924, and unconstitutional because confiscatory. Transport here supports the soundness of the reasons given by the three-judge District Court for its injunction and supplements them by contentions that the Commission's order was without support in the evidence and that Transport was not accorded due process of law at the hearing of October 17, 1944, 47 M. C. C. 753, 755. In view of our decision of today upholding the Commission in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, all reasons for affirming the judgment below may be promptly rejected. So far as the above issues relied upon by the District Court for its injunction are concerned, they seem to have been resolved in favor of the Government by our opinion in the Rock Island case. This proceeding involves certificates [340 U.S. 450, 459] for new routes under 207. No such certificates or applications were in that case. The opinion, however, considered the Commission's practice in 207 proceedings and stated that it was the same as in 5 and 213 acquisition proceedings. We now hold that the same considerations justify the reservation in issue here. See n. 2, supra. Transport's position that the order in question was without support in the evidence is based on the theory that as evidence was taken in the original applications that resulted in the necessary findings under 213 of the Motor Carrier Act and 5 of the Transportation Act of 1940 for certificates to railroad motor carrier affiliates, changes in practices cannot now be made without evidence that the formerly permitted practices had been inconsistent with the public interest and did unduly restrain competition. American Trucking Associations, Inc. v. United States, 326 U.S. 77, 86 , and Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88, 91 . 12 The Louisville & Nashville case required a full hearing and the privilege of introducing testimony before the road's rates were set aside as unreasonable. The Commission was taking the position that the Hepburn Act allowed it to set aside rates after a "hearing" without evidence. The American Trucking case dealt with the issuance of a series of certificates by the Commission to a railroad-affiliated motor carrier after refusal to admit evidence of the flow of truck traffic between various localities along the parent railroad, and of the effect of the existing [340 U.S. 450, 460] and prospective railroad-affiliated motor carriers on the over-the-road carriers. On appeal from an affirmance by a district court, we reversed the Commission. This situation, however, differs from those referred to by Transport in that the Commission has reopened the proceedings, after they were started by Transport for an interpretation of its right to file and maintain a motor common-carrier tariff. Hearings were had in 1942 at Dallas, at which appellee's witnesses gave testimony as to the freight interchange between appellee and other motor carriers and the existence of tariffs, etc. After the report of the Commission referred to on pp. 454-455, Transport and the Texas and Pacific Railway petitioned for reconsideration by the Commission, setting out the facts of their current operations, and addressing themselves particularly to the elimination of the prior or subsequent rail-haul condition. Thereafter the proceedings were reopened to determine what changes or modifications should be made. Another hearing was held, October 17, 1944, and report made. At that hearing Transport appeared but refused to introduce evidence. The examiner examined an official of Transport as to the nature and extent of Transport's operations. This evidence developed the fact that Transport operated both on motor-carrier and rail rates under its own bills of lading in full competition with other motor carriers. Thus there appears in the record adequate evidence of the circumstances of Transport's operations. Upon the due-process point we approve the ruling of the Commission. It follows: "Applicant argues that the notice setting the proceedings for further hearing did not inform it or the other parties of the nature of the issues to be met, or give them sufficient time to prepare to meet the issues; and that the hearing, in view of the request [340 U.S. 450, 461] for its cancellation, was in the nature of an ex parte proceeding. We are not impressed with applicant's argument that it was unable to foresee the issues. The notice in question stated that the further hearing was for the purpose of determining what changes, if any, should be made in the conditions, and thus placed the conditions themselves in issue. One of these is condition 5 or 5A, which in itself was adequate notice to applicant and the other parties that the primary purpose of the further hearing would be to determine, as provided for in that condition, whether it is necessary to change or modify the existing conditions or to add others so as effectively to restrict applicant's operations to service which is auxiliary to or supplemental of rail service. Applicant was given the opportunity of presenting evidence to show that no need exists for a change in its present conditions; however, not only did it choose not to offer such evidence, but it objected to the receipt of any evidence with respect thereto. In the circumstances, the examiner properly denied its motion to discontinue the further hearing and to withdraw its witness, and properly overruled its objection to the adduction of testimony through such witness." 13 The judgment of the three-judge District Court is reversed and the proceedings remanded with directions to dismiss the complaint. Reversed. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON and MR. JUSTICE BURTON dissent. Footnotes [Footnote 1 Sixteen proceedings are covered by I. C. C. docket number MC-50544, and various subnumbers, set out in Appendix A to Texas & Pacific Motor Transport Co. Common Carrier Application, 47 M. C. C. 753, 764. Transport was also operating under certain temporary authorities, Nos. MC-50544 (Sub-Nos. 21-TA, 24-TA, and 30-TA), which expired before the issuance of the Commission's orders under consideration here. [Footnote 2 "5. Such further specific conditions as we, in the future, may find it necessary to impose in order to restrict applicant's operation to service which is auxiliary to, or supplemental of, rail service. "5A. The authority herein granted shall be subject to such further limitations or restrictions as the Commission may hereafter find it necessary to impose in order to restrict applicant's operation to service which is auxiliary to, or supplemental of, train service of the railway, and in order to insure that the service rendered shall not unduly restrain competition." 47 M. C. C. 753, 766. [Footnote 3 "1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, rail service of the Texas and Pacific Railway, or in certain cases of its subsidiary rail lines, (or of Texas-New Mexico Railway Company) herein called the railway." Ibid. [Footnote 4 "2. Applicant shall not serve, or interchange traffic at any point not a station on a rail line of the railway." Ibid. [Footnote 5 "3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail. "3A. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering in addition to movement by applicant, a prior or subsequent movement by rail, and those which it transports as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules." Ibid. [Footnote 6 "3B. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points or through, or to, or from more than one of said points: Fort Worth, Tex., and Texarkana, Tex.-Ark. "3C. No shipments shall be transported by applicant between any of the following points or through, or to, or from more than one of said points: El Paso and Pecos, Tex." Ibid. [Footnote 7 "4. All contractual arrangements between applicant and the railway shall be reported to us and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and suitable to the parties." Ibid. [Footnote 8 41 M. C. C. 721, 726. [Footnote 9 47 M. C. C. 753, 763-764. [Footnote 10 47 M. C. C. 753, 754, and Rules 30, 107 (a) and 107 (b) of Supp. No. 5 to I. C. C. Tariff Circular No. 20. See 41 M. C. C. 721, 726, excerpted at note 19, No. 25, United States v. Rock Island Motor Transit Co., decided today, ante, p. 419. [Footnote 11 "Thus, while the Commission might prescribe the points to be served, it could not forbid the participation in joint rates and through routes for the simple reason that such a provision would be inconsistent with the wording of Sec. 216 of the Act." 87 F. Supp. 107, 112. [Footnote 12 Several Commission decisions on the general necessity of evidence to support rulings are added. Greyhound Corporation - Control, 50 M. C. C. 237, 242; Scannell - Control, 50 M. C. C. 535, 541; C. & D. Motor Delivery Company - Purchase - Hubert C. Elliott, 38 M. C. C. 547, 553; Joint N. E. Motor Carrier Assn., Inc. v. Rose and Welloff, 43 M. C. C. 487, 488. None bear on such a situation as this. They relate to restrictions on the issue or transfer of certificates and revocation. [Footnote 13 47 M. C. C. 753, 756. [340 U.S. 450, 462]

conservative

organization

judicial_power

1975-111-01

United States Supreme Court HANCOCK v. TRAIN(1976) No. 74-220 Argued: January 13, 1976Decided: June 7, 1976 Although 118 of the Clean Air Act obligates federal installations discharging air pollutants to join with nonfederal facilities in complying with state "requirements respecting control and abatement of air pollution," obtaining a permit from a State with a federally approved implementation plan is not among such requirements. There cannot be found in 118, either on its face or in relation to the Act as a whole, nor can there be derived from the legislative history of the Clean Air Amendments of 1970, any clear and unambiguous declaration by Congress that such federal installations may not operate without a state permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under the State's federally approved plan it is only through the permit system that compliance schedules and other requirements may be administratively enforced against federal installations. Pp. 178-199. 497 F.2d 1172, affirmed. WHITE, J., delivered the opinion of the Court in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART and REHNQUIST, JJ., filed a dissenting statement, post, p. 199. David D. Beals, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Ed W. Hancock, Attorney General, pro se, and David C. Short, Assistant Attorney General. Deputy Solicitor General Friedman argued the cause for respondents. On the brief were Solicitor General Bork, Assistant Attorney General Johnson, Deputy Solicitor [426 U.S. 167, 168] General Randolph, Jacques B. Gelin, Robert L. Klarquist, Robert H. Marquis, Herbert S. Sanger, Jr., and Beauchamp E. Brogan. * [Footnote * Briefs of amici curiae urging reversal were filed by William J. Baxley, Attorney General, and Henry H. Caddell and Frederick S. Middleton III, Assistant Attorneys General, for the State of Alabama; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and Richard G. Berger, Assistant Attorneys General for the State of New York; by John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General, for the State of Texas; by Andrew P. Miller, Attorney General, and J. Thomas Steger, Assistant Attorney General, for the Commonwealth of Virginia; and by Evelle J. Younger, Attorney General, Robert H. O'Brien and Carl Boronkay, Assistant Attorneys General, and Nicholas C. Yost, Roderick Walston, Daniel Taaffe, and C. Foster Knight, Deputy Attorneys General, for the State of California et al., joined by Arthur K. Bolton, Attorney General, and Robert E. Hall, Assistant Attorney General, for the State of Georgia. MR. JUSTICE WHITE delivered the opinion of the Court. The question for decision in this case is whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure such a permit. The case presents an issue of statutory construction requiring examination of the Clean Air Act, as amended, 42 U.S.C. 1857 et seq., and its legislative history in light of established constitutional principles governing the determination of whether and the extent to which federal installations have been subjected to state regulation. 1 The specific question is whether obtaining a permit to operate [426 U.S. 167, 169] is among those "requirements respecting control and abatement of air pollution" with which existing federal facilities must comply under 118 of the Clean Air Act. 2 I Last Term in Train v. Natural Resources Defense Council, 421 U.S. 60 (1975), we reviewed the development of federal air pollution legislation through the Clean Air Amendments of 1970 (Amendments) 3 and observed that although the Amendments "sharply increased federal authority and responsibility in the continuing effort to combat air pollution," they "explicitly preserved the principle" that "`[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . .,'" id., at 64, quoting from 107 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. 1857c-2 (a). Consistently with this principle, the Amendments required that within nine months after the Environmental Protection Agency (EPA) promulgated the primary and secondary ambient air quality standards required by 109 (a) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S.C. 1857c-4 (a), 4 for certain air pollutants, 5 each State submit to the EPA a plan by which it would implement and maintain those standards within its territory. 110 (a) (1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. 1857c-5 (a) (1). See 40 CFR pt. 51 (1975). The EPA was required to approve each State's [426 U.S. 167, 170] implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in 110 (a) (2). For existing sources 6 the State must propose "emission limitations, schedules, and timetables for compliance with such limitations" necessary to meet the air quality standards. 110 (a) (2) (B). As we observed in Train, supra, at 78-79, given the EPA's nationwide air quality standards, the State is to adopt a plan setting "the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. "[The EPA] is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. . . . The Act gives [the EPA] no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of 110 (a) (2). . . . Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation." (Footnote omitted.) Along with increasing federal authority and "taking a stick to the States" 7 by requiring them to implement the [426 U.S. 167, 171] federal standards promulgated pursuant to that authority, Congress also intended the Amendments "to strengthen the strictures against air pollution by federal facilities." 8 Before 1970, 111 (a) of the Clean Air Act simply declared "the intent of Congress" to be that federal installations "shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with" federal and state air pollution control authorities "in preventing and controlling the pollution of the air in any area insofar as the discharge of any matter from or by such" federal installation "may cause or contribute to pollution of the air in such area." 9 Experience with performance by federal sources of air pollution under this voluntary scheme 10 led the Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because "[i]nstead of exercising leadership in controlling or eliminating air pollution" 11 "Federal agencies have been notoriously laggard in abating pollution." 12 Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 1970 Congress added 118 to the Clean Air Act. The first sentence of the section provides: "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of [426 U.S. 167, 172] the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements." 42 U.S.C. 1857f. The remainder of 118 authorizes the President, upon a determination that it is "in the paramount interest of the United States to do so" and subject to several limitations, to exempt certain federal emission sources from "compliance with such a requirement." 13 After enactment of 118 there is no longer any question whether federal installations must comply with established air pollution control and abatement measures. The question has become how their compliance is to be enforced. II In February 1972, Kentucky submitted its implementation plan to the EPA. On May 31, 1972, the plan was approved by the Administrator in relevant part. 14 Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, 5 (1), which provides: "No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain [426 U.S. 167, 173] or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect." 15 An applicant for a permit must complete a form supplied by the Commission and, "when specifically requested by the Commission, include an analysis of the characteristics, properties, and volume of the air contaminants based upon source or stack samples of the air contaminants taken under normal operating conditions." 16 The process of review of the application may include hearings. 17 Permits are denied if the applicant does not supply the "information required or deemed necessary by the Commission to enable it to act upon the permit application," 18 or when "the air contaminant source will prevent or interfere with the attainment or maintenance of state or federal air quality standards." 19 When granted, a permit may be "subject to such terms and conditions set forth and embodied in the permit as the Commission shall deem necessary to insure compliance with its standards." 20 Once issued, a permit may be revoked or modified for failure to comply with the terms and conditions of the permit, with emission standards applicable to the air contaminant source, or with the [426 U.S. 167, 174] ambient air standards for the area in which the air contaminant source is located. Reg. AP-1, 5 (5), CA App. 122. Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army, 21 of the Tennessee Valley Authority (TVA), 22 and of the Atomic Energy Commission (AEC) 23 requesting that they apply for and obtain permits as requested by the EPA-approved plan. The responses to these requests were to the effect that federally owned or operated facilities located in Kentucky were not required to secure an operating permit. Each response, however, either offered to or did supply the information and data requested on the standard permit application form. 24 The Commission continued to press the federal officials [426 U.S. 167, 175] to apply for operating permits. In October 1972, the Regional Administrator of the EPA sent a letter to the operators of all federal facilities in the region, including those to which the Kentucky officials had addressed their requests, and to the Commission. Setting forth EPA policy and the agency's interpretation of 118 of the Clean Air Act, 25 the Regional Administrator stated: "It is clear that Section 118 . . . requires Federal facilities to meet state air quality standards and emission limitations and to comply with deadlines established in the approved state air implementation plans." App. 57. To aid the States in accomplishing these objections, wrote the Administrator, each federal facility should develop a compliance schedule and should provide "reasonable and specific" data requested by the State. Id., at 58. On the question whether federal facilities must apply for state permits, the letter reiterated the EPA position that although "Federal agencies are [not] required to apply for state operating permits . . . [o]ur aim is to encourage Federal agencies to provide the states with all the information required to assess compliance of pollution sources with standards, emission and discharge limitations and the needs for additional abatement measures." 26 Ibid. [426 U.S. 167, 176] Kentucky then brought this suit in the United States District Court for the Western District of Kentucky. 27 The complaint sought declaratory and injunctive relief requiring the Army, TVA, and AEC facilities to secure operating permits. Kentucky also named several EPA officials as defendants and asked the District Court to order them to commence appropriate actions under 113 of the Clean Air Act, directing the Army, the TVA, and the AEC facilities to comply with the provisions of Regulation AP-1, 5 (1). 28 On cross-motions for summary [426 U.S. 167, 177] judgment, the District Court ordered the complaint dismissed. Kentucky ex rel. Hancock v. Ruckelshaus, 362 F. Supp. 360 (1973). The Court of Appeals affirmed, 497 F.2d 1172 (CA6 1974). Like the District Court, 362 F. Supp., at 363 n. 3, the Court of Appeals found it unnecessary to determine whether the federal installations were in compliance with Kentucky's emission limitations or had adopted adequate compliance schedules, for it was Kentucky's position that notwithstanding possible compliance "the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits." 497 F.2d, at 1174-1175. After examining 118 and its purposes in relation to other provisions of the Clean Air Act, the court concluded: "We do not believe the congressional scheme for accomplishment of these purposes included subjection of federal agencies to state or local permit requirements. Congress did commit the United States to compliance with air quality and emission standards, and it is undisputed in this record that the federal facilities in Kentucky have cooperated with the Commission toward this end." 497 F.2d, at 1177. We granted Kentucky's petition for certiorari, 420 U.S. 971 (1975), to resolve a conflict in the Courts of Appeals, 29 and now affirm. [426 U.S. 167, 178] III It is a seminal principle of our law "that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them." M'Culloch v. Maryland, 4 Wheat. 316, 426 (1819). From this principle is deduced the corollary that "[i]t is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Id., at 427. The effect of this corollary, which derives from the Supremacy Clause 30 and is exemplified in the Plenary Powers Clause 31 giving Congress exclusive legislative authority over federal enclaves purchased with the consent of a State, is "that the activities of the Federal Government are free from regulation by any state." 32 As Mr. Justice Holmes put it in Johnson v. Maryland, 254 U.S. 51, 57 (1920): "[T]he immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they [426 U.S. 167, 179] desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them . . . ." Taken with the "old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign" 33 "without a clear expression or implication to that effect," 34 this immunity means that where "Congress does not affirmatively declare its instrumentalities or property subject to regulation," "the federal function must be left free" of regulation. 35 Particular deference should be accorded that "old and well-known rule" where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign. Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is "a clear congressional mandate," 36 "specific congressional action" 37 that makes this authorization of state regulation "clear and unambiguous." 38 Neither the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government. See Penn Dairies [426 U.S. 167, 180] v. Pennsylvania Milk Control Comm'n, 318 U.S. 261 (1943); Alabama v. King & Boozer, 314 U.S. 1, 9 (1941), and cases cited. "Here, however, the State places a prohibition on the Federal Government." 39 The permit requirement is not intended simply to regulate the amount of pollutants which the federal installations may discharge. Without a permit, an air contaminant source is forbidden to operate even if it is in compliance with every other state measure respecting air pollution control and abatement. It is clear from the record that prohibiting operation of the air contaminant sources for which the State seeks to require permits, App. 14-17, is tantamount to prohibiting operation of the federal installations on which they are located. Id., at 89-93. Kentucky, like the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, 1247-1248 (1974), finds in 118 a sufficient congressional authorization to the States, not only to establish the amount of pollutants a federal installation may discharge, but also to condition operation of federal installations on securing a state permit. We disagree because we are not convinced that Congress intended to subject federal agencies to state permits. We are unable to find in 118, on its face or in relation to the Clean Air Act as a whole, or to derive from the legislative history of the Amendments any clear and unambiguous declaration by the Congress that federal installations may not perform their activities unless a state official issues a permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under Kentucky's EPA-approved implementation plan it is only through the permit system that compliance schedules and other [426 U.S. 167, 181] requirements may be administratively enforced against federal installations. IV The parties rightly agree that 118 obligates federal installations to conform to state air pollution standards or limitations and compliance schedules. 40 With the enactment of the Amendments in 1970 came the end of the era in which it was enough for federal facilities to volunteer their cooperation with federal and state officials. In Kentucky's view that era has been replaced by one in which federal installations are not only required to limit their air pollutant emissions to the same extent as their nonfederal neighbors, but also, subject only to case-by-case Presidential exemption, to submit themselves completely to the state regime by which the necessary information to promulgate emission limitations and compliance schedules is gathered and by which collection of that information and enforcement of the emission limitations and compliance schedules are accomplished. Respondents (hereafter sometimes EPA) take the position that the Congress has not gone so far. While federal and nonfederal installations are governed by the same emission standards, standards which the States have the primary responsibility to develop, the EPA maintains that the authority to compel federal installations to provide necessary information to the States and to conform to state standards necessary to carry out the federal policy to control and regulate air pollution has not been extended to the States. [426 U.S. 167, 182] Analysis must begin with 118. 41 Although the language of this provision is notable for what it states in comparison with its predecessor, 42 it is also notable for what it does not state. It does not provide that federal installations "shall comply with all federal, state, interstate, and local requirements to the same extent as any other person." Nor does it state that federal installations "shall comply with all requirements of the applicable state implementation plan." Section 118 states only to what extent - the same as any person - federal installations must comply with applicable state requirements; it does not identify the applicable requirements. There is agreement that 118 obligates existing federal installations to join nonfederal sources in abating [426 U.S. 167, 183] air pollution, that comparable federal and nonfederal sources are expected to achieve the same levels of performance in abating air pollution, and that those levels of performance are set by the States. Given agreement that 118 makes it the duty of federal facilities to comply with state-established air quality and emission standards, the question is, as the Fifth Circuit put it in another case, "whether Congress intended that the enforcement mechanisms of federally approved state implementation plans, in this case permit systems, would be" available to the States to enforce that duty. Alabama v. Seeber, 502 F.2d, at 1247. In the case before us the Court of Appeals concluded that federal installations were obligated to comply with state substantive requirements, as opposed to state procedural requirements, 497 F.2d, at 1177, but Kentucky rejects the distinction between procedural and substantive requirements, saying that whatever is required by a state implementation plan is a "requirement" under 118. The heart of the argument that the requirement that all air contaminant sources secure an operating permit is a "requirement respecting control and abatement of air pollution" is that Congress necessarily implied the power to enforce from the conceded authority to develop and set emission standards. Under Kentucky's EPA-approved implementation plan, the permit requirement "is the mechanism through which [it] is able to compel the production of data concerning air contaminant sources, including the ability to prescribe the monitoring techniques to be employed, and it is the only mechanism which allows [it] to develop and review a source's compliance schedule and insure that schedule is followed." 43 When a State is without administrative means of implementing and enforcing its standards [426 U.S. 167, 184] against federal sources, a duty to comply with those standards is said to be utterly meaningless. 44 The difficulty with this position is threefold. First, it assumes that only the States are empowered to enforce federal installations' compliance with the standards. Second, it assumes the Congress intended to grant the States such authority over the operation of federal installations. Third, it unduly disregards the substantial change in the responsibilities of federal air contaminant sources under 118 in comparison with 42 U.S.C. 1857f (a) (1964 ed., Supp. V), supra, at 171. Contrary to Kentucky's contention that Congress necessarily intended to subject federal facilities to the enforcement mechanisms of state implementation plans, our study of the Clean Air Act not only discloses no clear declaration or implication of congressional intention to submit federal installations to that degree of state regulation and control but also reveals significant indications that in preserving a State's "primary responsibility for assuring air quality within [its] entire geographic area" the Congress did not intend to extend that responsibility by subjecting federal installations to such authority. The Clean Air Act, as amended, does not expressly provide for a permit system as part of a State's implementation plan. 45 It is true that virtually every State [426 U.S. 167, 185] has adopted a form of permit system much like that adopted by Kentucky, see 40 CFR pt. 52 (1975), as a means of gathering information to determine what emission standards to set and compliance schedules to approve and of assuring compliance with them. Also, only an implementation plan enabling a State to meet these - and other - objectives can be approved by the EPA. 46 Nonetheless we find in the 1970 Amendments several firm indications that the Congress intended to treat emission standards and compliance schedules - those requirements which when met work the actual reduction of air pollutant discharge - differently from administrative and enforcement [426 U.S. 167, 186] methods and devices - those provisions by which the States were to establish and enforce emission standards, compliance schedules, and the like. This is so in spite of the absence of any definition of the word "requirements" or of the phrase "requirements respecting control and abatement of air pollution." 47 [426 U.S. 167, 187] In 110 (e) (1) (A), for example, the EPA is authorized to extend for two years a State's three-year deadline for attaining a national primary air quality standard if, upon timely application, it is determined that an emission source is unable to meet "the requirements of such plan which implement such primary standard because the necessary technology" is unavailable. 42 U.S.C. 1857c-5 (e) (1) (A). Although compiling the information necessary for a permit may require familiarity with technology, it is plain that the "requirements" to which this section refers are those for which technologically adequate industrial processes might not be available. Section 110 (e) (2) (A) necessarily contemplates the same meaning of "requirements," that is, emission standards and compliance schedules, as does 110 (f) which provides for one-year postponement of the application of "requirements" to sources the continued operation of which is "essential to national security or to the public health." 42 U.S.C. 1857c-5 (f) (1) (D). See Train, 421 U.S., at 80 -84. 48 Stronger indications that the term "requirements" as used in 118 does not embrace every measure incorporated in a State's implementation limitations and compliance [426 U.S. 167, 188] schedules appear in the emergence of 118 from the House bill and Senate amendment from which it was derived. The House bill provided that federal installations "shall comply with applicable Federal, State, interstate, and local emission standards." 49 The House Report stated that this "legislation directs Federal agencies in the executive, legislative, and judicial branches to comply with applicable Federal, State, interstate, and local emission standards." 50 The Senate amendment provided that federal agencies "shall provide leadership in carrying out the policy and purposes of this Act and shall comply with the requirements of this Act in the same manner as any person . . . ." 51 The Senate Report stated that this provision "requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I." 52 Thus while the House bill spoke of "emission standards," the Senate amendment, like 118 as enacted, spoke of "requirements." In accommodating the different language in the two bills and formulating what is now 118, the Conference Committee simply combined the House and Senate provisions. If, as Kentucky argues, [426 U.S. 167, 189] the Conference Committee in taking the Senate language of "requirements" meant thereby to subject federal facilities to enforcement measures obviously not embraced in the language of the House bill, it is remarkable that it made no reference to its having reconciled this difference in favor of extending state regulation over federal installations. Given the interchangeable use of "emission standards" and "emission requirements" in the Senate amendment, see n. 52, supra, the predominance of the language of the Senate version in 118 as enacted, 53 and the absence of any mention of disagreement between the two bills, it is more probable that the Conference Committee intended only that federal installations comply with emission standards and compliance schedules than that its intention was to empower a State to require federal installations to comply with every measure in its implementation plan. See Alabama v. Seeber, 502 F.2d, at 1247. The impression that Congress intended only that federal agencies comply with emission limitations and standards is strengthened by the Conference Report, which stated in full: "The House bill and the Senate amendment declared that Federal departments and agencies should comply with applicable standards of air quality and emissions. "The conference substitute modifies the House [426 U.S. 167, 190] provision to require that the President rather than the Administrator be responsible for assuring compliance by Federal agencies." 54 This examination of 118 and the central phrase "requirements respecting control or abatement of air pollution," discloses a regime of divided responsibility for the mobilization of federal installations in the effort to abate air pollution. Kentucky agrees but persists in its contention that existing federal sources have been subjected to state regulation by differing on where that division places authority to enforce compliance by existing federal facilities - "`sources with respect to which state implementation plans establish the criteria for enforcement.'" 55 For such - existing - sources, Kentucky maintains, the States are granted primary enforcement authority while "`the responsibility and authority for [426 U.S. 167, 191] enforcement . . . is granted to EPA in those instances (i. e., new sources and hazardous pollutants) where EPA establishes the criteria.' " 56 Perhaps we could agree if the issue were not whether there is a clear and unambiguous congressional authorization for the regulatory authority petitioner seeks, for as the Fifth Circuit has said, such a "scheme is a reasonable one." Alabama v. Seeber, supra, at 1244. But that is the issue, and the implications Kentucky draws from its evaluation of the manner in which the Congress divided responsibility for regulation of new sources and of hazardous air pollutants do not persuade us. In drawing on the manner in which the Clean Air Act has divided the authority to regulate new sources of air pollutants 57 and the emission of hazardous air pollutants 58 in comparison with existing air pollutant sources, Kentucky makes two separate though related arguments. The first is that when Congress wanted to exempt federal facilities from compliance with a state requirement, it did so by express exclusionary language. Thus 111 (c) (1) authorizes the Administrator to delegate to a State "any authority he has under this Act to implement and enforce" new-source standards of performance - with which new sources owned or operated by the United States must comply ( 111 (b) (4)) - "except with respect to new sources owned or operated by the United States." 42 U.S.C. 1857c-6 (c) (1). Section 114 (b) (1) of the Clean Air Act, as added, 84 Stat. 1688, is to the same [426 U.S. 167, 192] effect respecting inspections, monitoring, and entry of an emission source. 42 U.S.C. 1857c-9 (b) (1). Similarly, 112 (d) (1) authorizes the Administrator, upon finding that a State's plan to enforce emission standards for hazardous pollutants is adequate to the task, to delegate to that State "any authority he has under this Act to implement and enforce such standards (except with respect to stationary sources owned or operated by the United States)." 42 U.S.C. 1857c-7 (d) (1). The argument that these specific exemptions of federal facilities from state enforcement and implementation methods are necessary only because 118 has, as a general matter, subjected federal installations to all state requirements fails on several counts. First, as we have demonstrated, by itself 118 does not have the effect petitioner claims. Second, the relevant portions of 111, 112, and 114 assume that the Administrator possesses the authority to enforce and implement the respective requirements against sources owned or operated by the United States. See 111 (c) (2), 112 (d) (2), and 114 (b) (2). Third, just as in providing for Presidential exemptions in 118 Congress separated the requirements of 111 and 112 from other requirements, Congress naturally treated the submission of federal installations to state regulation under 111, 112, and 114 separately from general provisions for meeting ambient air quality standards under 110 implementation plans devised by the States and approved by the EPA. A State must promulgate an implementation plan. 110 (a). The delegation provisions of 111, 112, and 114, on the other hand, are permissive, providing that "[e]ach State may develop and submit to the Administrator a procedure" to carry out the section. (Emphasis added.) Kentucky's second argument is that the manner in which Congress differentiated treatment of new sources [426 U.S. 167, 193] and existing sources in 111 and 114 clearly implies that existing federal sources were to be subject to the enforcement provisions of a State's implementation plan. The implication is said to arise from the different nature of the control required for the two types of installations. The difference is explained as follows: For existing sources the first step for a State is to determine the general quality of air in the relevant air quality region and then to compute the amounts of pollution attributable to each source. Next, appropriate emission standards necessary to meet the national ambient air quality standards must be assigned to the various sources, followed by determining the compliance schedule by which each installation will achieve the assigned standards by the attainment date prescribed in the Act. To carry out this process of gathering information and coordinating control throughout the State, it is said to be necessary for the States to have ready administrative authority over all sources, federal and nonfederal. This administrative authority, concededly a major part of an implementation plan as to nonfederal sources, must therefore have been intended to extend to federal sources as well. In contrast, controlling "new sources" is described as a straightforward task. This is because "standards of performance" for such sources, which are established in light of technologically feasible emission controls and not in relation to ambient air quality standards 59 are set by the EPA for various categories of sources and are uniform throughout the Nation. A comprehensive enforcement [426 U.S. 167, 194] mechanism to develop and coordinate application of these standards is unnecessary, especially because all new sources must be in compliance before operation begins, 111 (e). The Congress is said, therefore, to have exempted new federal installations from state enforcement of federally promulgated standards of performance because it was unnecessary to submit those installations to the same kind of coordinated control to which existing sources had been submitted. The Act itself belies this contention. It recognizes that a "new source," even one in full compliance with applicable standards of performance, may hinder or prevent attainment or maintenance of air quality standards within the air quality region in which it is located, and requires a state implementation plan to include procedures for averting such problems. See 110 (a) (2) (D), (a) (4). The arguments respecting the federal new-source exception in 114 also fail to bear the weight they must carry if Kentucky is to prevail. Section 114 provides for the establishment of various means by which to collect information "[f]or the purpose (i) of developing or assisting in the development of any implementation plan under section 110 or 111 (d), any standard of performance under section 111, or any emission standard under section 112, [or] (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan . . . ." 84 Stat. 1687, as added, 42 U.S.C. 1857c-9 (a). Unlike 111 and 112, 114 is doubly permissive. First, although the Administrator "shall" publish 111 new-source standards of performance and 112 hazardous air-pollutant-emission standards, under 114 (a) the Administrator "may," but need not, require operators [426 U.S. 167, 195] of emission sources to keep records, to make reports, to install, use, and maintain monitoring equipment, and to sample its emissions. Second, as with 111 and 112, the States "may" develop procedures to carry out the section. That Congress provided for this slight possibility that existing federal sources would be obliged to conform to state procedures for carrying out 114 in addition to emission standards and compliance schedules scarcely implies, as petitioner suggests, that Congress intended existing federal sources to comply with all state regulatory measures, not only emission standards and compliance schedules. Rather than exempting new federal sources from an obligation to which they would otherwise have been subject, Congress may as well have been extending the obligation to conform to state 114 regulatory procedures to existing - but not to new - federal sources which would not otherwise have been thought subject to such regulation. Finally, we reject the argument that 304 of the Clean Air Act, reveals congressional intention to grant the States authority to subject existing federal sources to the enforcement mechanisms of their enforcement plan. The section provides in part: "(a) Except as provided in subsection (b), any person may commence a civil action on his own behalf - "(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ." 42 U.S.C. 1857h-2. [426 U.S. 167, 196] Section 302 (e) includes a "State" in the definition of a "person," 42 U.S.C. 1857h (e), and 304 (f) provides: "For purposes of this section, the term `emission standard or limitation under this Act' means - (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard . . . which is in effect under this Act (including a requirement applicable by reason of section 118) or under an applicable implementation plan." 42 U.S.C. 1857h-2 (f). Although it is argued that 304 was not intended to permit a State to sue violators under the Act, we agree with the EPA that 304 is the only means provided by the Act for the States to remedy noncompliance by federal facilities with 118. That 304 was so intended is plain from both the language of 304 (f) and the legislative origins of 304. The Senate version of 118 provided that a State "in which any Federal property, facility, or activity is located may seek to enforce the provisions of this section pursuant to section 304 of this Act." 60 When the Conference Committee eliminated this subsection from the Senate amendment, it retained the definition of "person," which included a "State" in 302 (e), and added 304 (f) with the parenthetical phrase "including a requirement applicable by reason of section 118." This made clear that 118 was to be enforced through 304, and 304 is the only provision in the Act for state enforcement of the duties of a federal installation under 118. In short, 118 establishes the duty of federal installations to comply with state "requirements," and 304 provides the means of enforcing that duty in federal court. In light of this [426 U.S. 167, 197] close relationship between the two sections, we find it significant that 304 (f) extends the enforcement power only to "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard," and not to all state implementation measures. Thus circumscribed, the scope of the 304 power to enforce 118 strongly suggests that 118 duties themselves are similarly limited, for it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under 118, the Congress would not make all of those duties enforceable in district court. Yet this is exactly what Kentucky argues, saying: "There can be no explanation for the existence of Section 118 if it imposes no obligations other than those imposed under Section 304." 61 The argument is defective on another count. Even if, standing alone, 304 could be read to require federal facilities to comply with the matters within 304 (f), the assumption that the two sections independently impose duties on federal installations conflicts with the legislative history. Section 304 (a) was first extended to apply to federal sources of pollution in Conference, at the same point at which the express provision for enforcement authority over federal installations was removed from 118. 62 Given this relationship between [426 U.S. 167, 198] the two measures, we cannot credit the argument that 118 was intended to impose on federal installations any broader duty to comply with state implementation measures than specified in 304. The absence in 304 of any express provision for enforcing state permit requirements in federal court is therefore too substantial an indication that congressional understanding was that the "requirements" federal facilities are obliged to meet under 118 did not include permit requirements to be overcome by assertions to the contrary. V In view of the undoubted congressional awareness of the requirement of clear language to bind the United States, 63 our conclusion is that with respect to subjecting federal installations to state permit requirements, the Clean Air Act does not satisfy the traditional requirement that such intention be evinced with satisfactory clarity. Should this nevertheless be the desire of Congress, it need only amend the Act to make its intention manifest. 64 Absent such amendment, we can only conclude that to the extent it considered the matter in enacting 118 Congress has fashioned a compromise which, while requiring federal installations to abate their pollution to the same extent as any other air contaminant source and under standards which the States have prescribed, [426 U.S. 167, 199] stopped short of subjecting federal installations to state control. This conclusion does not mean that we are persuaded that the States are as able to administer their implementation plans as they would be if they possessed the degree of authority over federal installations urged here, although, as Kentucky acknowledged at oral argument, the EPA, acting under the impetus of Executive Order No. 11752, 3 CFR 380 (1974), has promulgated guidelines for compliance by federal agencies with stationary source air pollution standards, 40 Fed. Reg. 20664 (1975), which will lead to federal agencies' entering "consent agreements which are exactly identical in every respect to what a compliance schedule would have been." 65 The judgment of the Court of Appeals is Affirmed. Footnotes [Footnote 1 In EPA v. California ex rel. State Water Resources Control Board, post. p. 200, also decided this day, we consider a closely related issue under the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. (1970 ed., Supp. IV). [Footnote 2 As renumbered and amended, 84 Stat. 1689, 42 U.S.C. 1857f. [Footnote 3 Pub. L. 91-604, 84 Stat. 1676. [Footnote 4 36 Fed. Reg. 8186 (1971). See 40 CFR pt. 50 (1975). Title 40 CFR 50.1 (e) (1975) defines "ambient air" as "that portion of the atmosphere, external to buildings, to which the general public has access." [Footnote 5 The EPA is guided in compiling a list of air pollutants by 108 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. 1857c-3 (a). [Footnote 6 The range of a State's initiative in meeting its primary responsibility to assure air quality is somewhat greater for existing sources of air pollution, such as those involved in this case, than for "new sources." See infra, at 190-194. [Footnote 7 Train v. Natural Resources Defense Council, 421 U.S. 60, 64 (1975). [Footnote 8 Brief for Respondents 27. [Footnote 9 As amended, 81 Stat. 499, 42 U.S.C. 1857f (a) (1964 ed., Supp. V). [Footnote 10 Congress first called on federal agencies to cooperate with efforts to reduce air pollution in 1959, Pub. L. 86-365, 73 Stat. 646. [Footnote 11 H. R. Rep. No. 91-1146, p. 4 (1970), 2 Legislative History of the Clean Air Amendments of 1970 (Comm. Print compiled for the Senate Committee on Public Works by the Library of Congress), p. 894 (1974) (hereafter Leg. Hist.). [Footnote 12 S. Rep. No. 91-1196, p. 37 (1970), 1 Leg Hist. 437. [Footnote 13 The full text of 118 appears at n. 41, infra. [Footnote 14 37 Fed. Reg. 10842, 10868-10869 (1972). Approval of the plan was later vacated because the EPA had not given interested persons an opportunity to participate in its consideration of the plan. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (CA6 1973). After resubmission to the EPA and publication as a proposed rule-making, 39 Fed. Reg. 10277 (1974), the plan was approved with an exception not pertinent here. Id., at 29357. [Footnote 15 Pet. for Cert. 46a. Although 5 (1) does not explicitly apply to federal facilities, the definition of "person" in 2 (32) of the Regulation includes any "government agency . . . or other entity whatsoever." App. in No. 73-2099 (CA6), p. 111 (hereafter CA App.). The applicability of 5 (1) to federal facilities as a matter of Kentucky law has not been disputed. [Footnote 16 Reg. AP-1 5 (2) (a), (c), CA App. 120. [Footnote 17 See generally Reg. AP-10, CA App. 209-227. [Footnote 18 Reg. AP-1, 5 (2) (c), CA App. 120. [Footnote 19 Id., 5 (3) (a), CA App. 121. [Footnote 20 Id., 5 (4), CA App. 121. [Footnote 21 The Army facilities are the United States Army Armor Center and Fort Knox, Fort Campbell, and the Lexington and Blue Grass Activities, Lexington-Blue Grass Army Depot. [Footnote 22 Two TVA facilities are involved, the Shawnee and Paradise Power Plants. [Footnote 23 The AEC facility is the Paducah Gaseous Diffusion Plant for the production of enriched uranium, operated under contract by the Union Carbide Corp. Since the Commission initiated its efforts to secure a permit application from the AEC or its contractor, the Energy Research and Development Administration has succeeded to the AEC's responsibility for the Paducah plant. Pub. L. 93-438, 88 Stat. 1233; see 40 Fed. Reg. 3242, 3250 (1975). [Footnote 24 Fort Campbell officials, for example, after asserting that "current Department of the Army regulations do not allow us to apply for such a permit," submitted "pertinent information on our heating plants which appear to be covered by your regulations" and asked to be "advise[d] if any further information is desired." App. 48. TVA officials likewise disclaimed any duty to apply for a permit but submitted "the same emission data and other information for [TVA] power plants which your permit application forms are designed to elicit from applicants who are required to secure permits in order to continue their operations." For the Commission's convenience, [426 U.S. 167, 175] the TVA supplied the information on the Commission's own permit forms. Id., at 52. [Footnote 25 In addition to 118, the letter referred to Executive Order No. 11507, 3 CFR 889 (1966-1970 Comp.), which antedates the Amendments, as a policy source. This Order, cited in the complaint, has been superseded by Executive Order No. 11752, 3 CFR 380 (1974). See infra, at 199. [Footnote 26 The letter explained to the federal officials that the EPA's "advice on this matter, at this time, is to provide the data specifically requested by the states so they may make a determination as to: (1) the facilities compliance with the approved state air implementation plans and (2) the abatement action facilities must take in order to meet implementation plan requirements. "We recommend that each Federal facility under your jurisdiction [426 U.S. 167, 176] which has an air pollution discharge should initiate immediate discussion, if it has not already been accomplished, with the respective states, regarding development of a compliance schedule as required by their implementation plan. This compliance schedule should include the standards or emission limitations which must be met, the abatement equipment to be constructed, corrective measures to be taken, and the timetable for taking these actions in order to meet established implementation plan deadlines. Your agency will be obligated under the compliance schedule to conduct monitoring and to keep operating records. Whenever a state makes a reasonable and specific request to review operating records, we recommend that your agency adopt an open-door policy by providing the requested data." App. 57-58. [Footnote 27 The suit was brought by the Attorney General without the concurrence of the Commission. The District Court's ruling that Kentucky law permitted the Attorney General to sue without a request from the Commission is not challenged here. [Footnote 28 Section 113, as added, 84 Stat. 1686, 42 U.S.C. 1857c-8, empowers the EPA Administrator, upon finding that any person is in violation of an applicable provision of an implementation plan or that violations of an applicable implementation plan are so widespread as to appear to result from ineffective state enforcement and upon giving notice, to commence appropriate action either by issuing an order to any person requiring compliance with the plan's requirements or by bringing a civil action under 113 (b) in district court. The District Court and the Court of Appeals both ruled that, even if federal facilities were obligated to secure operating permits, the Administrator's duty to proceed under 113 was discretionary. The decision not to commence actions [426 U.S. 167, 177] under 113 was therefore unreviewable. 5 U.S.C. 701 (a) (2); 304 (a) (2) of the Clean Air Act, as added, 84 Stat. 1706, 42 U.S.C. 1857h-2 (a) (2). Our disposition of the case makes it unnecessary to reach this alternative ground for judgment in favor of the EPA respondents. [Footnote 29 After the petition was filed, a divided panel of the Fifth Circuit concluded that 118 does require federal facilities to secure a state operating permit and to comply with state "enforcement mechanisms." [426 U.S. 167, 178] Alabama v. Seeber, 502 F.2d 1238 (1974), cert. pending, No. 74-851. See also California v. Stastny, 382 F. Supp. 222 (CD Cal. 1972). [Footnote 30 Art. VI, cl. 2. [Footnote 31 Art. I, 8, cl. 17: "[The Congress shall have power to] exercise exclusive Legislat[ive] . . . . Authority over all places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings . . . ." [Footnote 32 Mayo v. United States, 319 U.S. 441, 445 (1943) (footnote omitted). [Footnote 33 United States v. United Mine Workers, 330 U.S. 258, 272 (1947) (footnote omitted). See United States v. Herron, 20 Wall. 251, 263 (1874); United States v. Knight, 14 Pet. 301, 315 (1840). [Footnote 34 United States v. Wittek, 337 U.S. 346, 359 (1949) (footnote omitted). [Footnote 35 Mayo v. United States, supra, at 447, 448 (footnote omitted). [Footnote 36 Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954). [Footnote 37 Paul v. United States, 371 U.S. 245, 263 (1963). [Footnote 38 California ex rel. State Water Resources Control Board v. EPA, 511 F.2d 963, 968 (CA9 1975), rev'd on other grounds, post, p. 200. [Footnote 39 California Pub. Util. Comm'n v. United States, 355 U.S. 534, 544 (1958). [Footnote 40 Title 40 CFR 51.1 (p) (1975) defines "compliance schedule" as "the date or dates by which a source or category of sources is required to comply with specific emission limitations contained in an implementation plan and with any increments of progress toward such compliance." Basically a compliance schedule is a means by which a State phases in attainment with the ultimate emission limitations that must be achieved. See Train, 421 U.S., at 68 -69. [Footnote 41 "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements. The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 111, and an exemption from section 112 may be granted only in accordance with section 112 (c). No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption." 42 U.S.C. 1857f. [Footnote 42 See 42 U.S.C. 1857f (a) (1964 ed., Supp. V). supra, at 171. [Footnote 43 Brief for Petitioner 21 (emphasis added). [Footnote 44 Id., at 30. Several States which have filed briefs as amici curiae join Kentucky in recognizing that the issue is whether a State may enforce its emission limitations against a federal installation. See Brief for Alabama as Amicus Curiae 4, 5, 37-38; Brief for California as Amicus Curiae 9. [Footnote 45 Although use of permit system may have been "encouraged" by the EPA as its "preferred approach," see Train, 421 U.S., at 68 -69, the EPA has never made a permit system to control emissions from existing stationary sources a mandatory part of an implementation plan. The closest the EPA has come to this was a provision in a proposed rulemaking, 36 Fed. Reg. 6680, 6682 (1971), later eliminated, id., at 15486, that might have been interpreted to [426 U.S. 167, 185] mean that an implementation plan must include a system requiring permits for the construction and operation of modifications to existing sources that would be modified before the Administrator promulgated proposed standards of performance for new sources under 111 of the Clean Air Act. Compare 42 U.S.C. 1857c-6 (a) (2), (b), with 36 Fed. Reg. 6682 (1971), proposing 42 CFR 420.11 (a) (4). [Footnote 46 Among the eight conditions, 110 (a) (2) (A)-(H), each implementation plan must meet are: "(A) (i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e)) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; "(B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of . . . primary or secondary standard[s], including, but not limited to, land-use and transportation controls; [and] "(C) it includes provision for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality and, (ii) upon request, make such data available to the Administrator . . . ." [Footnote 47 The phrase "requirement respecting control or abatement of air pollution" also appears in 116 of the Clean Air Act, as added, 84 Stat. 1689, 42 U.S.C. 1857d-1. That section provides that, with certain exceptions pre-empting state regulation of moving sources, "nothing in this Act shall preclude or deny the right of any State . . . to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112, such State . . . may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section." (Emphasis added.) Although the meaning of the italicized phrase in this section, which was added by the Conference Committee, see H. R. Conf. Rep. No. 91-1783, p. 48 (1970), 1 Leg. Hist. 198, is not entirely clear, it seems plain that as employed in 116 the phrase is not synonymous with "emission standards and limitations." As the Fifth Circuit observed in Alabama v. Seeber, 502 F.2d, at 1245, the use of "`or' in 116 is clearly disjunctive." Yet it is agreed that, as used in 118, the phrase does embrace such standards and limitations; indeed the EPA argues the two are synonymous. It is suggested by an amicus that it is logical to read 116 to mean that a "`standard or limitation respecting emissions of air pollutants' is a subcategory of the broader class of `requirement[s] respecting control or abatement of air pollution.'" Brief for Alabama as Amicus Curiae 20. To the contrary, from 116 it appears more logical to conclude that "standards" and "requirements" are separate categories which, together, compose all measures which a State is not denied the right to adopt or enforce. Unlike Kentucky and the Fifth Circuit, Alabama v. Seeber, supra, at 1245-1246, which conclude that use of the phrase in 116 elucidates its scope and meaning in 118, we are unable [426 U.S. 167, 187] to draw from 116 any support for the position that Congress affirmatively declared that federal installations must secure state permits. To reaffirm, as does 116, a State's inherent right as a general matter to employ permits in the exercise of its police power in the area of air pollution control may mean that the Federal Government has not pre-empted the area from state regulation, but does not constitute the kind of clear and unambiguous authorization necessary to subject federal installations and activities to state enforcement. [Footnote 48 Provision in 118 for Presidential exemption on a case-by-case basis and in the "paramount interest of the United States" from compliance with emission standards or compliance schedules does not clearly imply that federal installations are otherwise subject to the enforcement mechanisms of a state implementation plan. [Footnote 49 H. R. 17255, 91st Cong., 2d Sess., 10 ( 111) (1970), 2 Leg. Hist. 938 (emphasis added). [Footnote 50 H. R. Rep. No. 91-1146, supra, n. 11, at 4, 2 Leg. Hist. 894 (emphasis added). [Footnote 51 S. 4358, 91st Cong., 2d Sess., 7 ( 118 (a)) (1970), 1 Leg. Hist. 573 (emphasis added). [Footnote 52 S. Rep. No. 91-1196, supra, n. 12, at 23, 1 Leg. Hist. 423 (emphasis added). Throughout the Senate amendment and in the Report the terms "requirements," "emission requirements," and "emission standards" were used interchangeably. Compare proposed 118 (a) ("requirements") and the Report ("emission standards") with proposed 111 (a) (2) (D) ("emission requirements"), 1 Leg. Hist. 545. [Footnote 53 For example, only the Senate amendment equated the federal installation's duty to comply with "requirements" to any person's duty, a feature of 118 as enacted. Similarly, only the Senate amendment, in 118 (b) (1 Leg. Hist. 574), provided that a State might sue in federal court to enforce the provisions of 118 (a). H. R. Conf. Rep. No. 91-1783, supra, at 55, 1 Leg. Hist. 205. That provision was incorporated in the Amendments in 304 (a), through the definition of "person" retained in 302 (e), as added, 77 Stat, 400, 42 U.S.C. 1857h (e). [Footnote 54 H. R. Conf. Rep. 91-1783, supra, at 48, 1 Leg. Hist. 198. We are not persuaded by the argument that reference to the President's replacing the EPA Administrator as the one "responsible for assuring compliance by Federal agencies" only implicates the President's power to "exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with . . . a requirement." 42 U.S.C. 1857f. Both the House and Senate Reports referred quite plainly to the power to exempt and to make exceptions when referring to the President's (or the Administrator's) power to act in the paramount interest of the United States on a case-by-case basis. S. Rep. No. 91-1196, supra, at 23, 1 Leg. Hist. 423; H. R. Rep. No. 91-1146, supra, at 15, 2 Leg. Hist. 905. Thus, reference in the Conference Report to the President's authority to assure compliance merely expresses what is implied by the very grant of authority to exempt some federal sources - the authority, as to those installations subject to Presidential control, to enforce in the first instance the new regimen of federal compliance with primarily state formulated and administered implementation plans rests in the Federal Government, not in the States. [Footnote 55 Brief for Petitioner 33, quoting Alabama v. Seeber, 502 F.2d, at 1244. [Footnote 56 Ibid. [Footnote 57 Regulation of "new sources" of air pollutants, by EPA-promulgated "standards of performance" (see infra, n. 59), is provided for in 111 of the Clean Air Act, as added, 84 Stat. 1683, 42 U.S.C. 1857c-6. [Footnote 58 Regulation of "hazardous air pollutants" is provided for in 112 of the Clean Air Act, as added, 84 Stat. 1685, 42 U.S.C. 1857c-7. [Footnote 59 Section 111 (a) (1) defines a "standard of performance" to be "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." 42 U.S.C. 1857c-6 (a) (1). [Footnote 60 S. 4358, 7 ( 118 (b)), 1 Leg. Hist. 574. See n. 53, supra. [Footnote 61 Reply Brief for Petitioner 15-16. [Footnote 62 The House bill included no provision for suit in federal court. H. R. Conf. Rep. No. 91-1783, supra, at 55, 1 Leg. Hist. 205. The Senate amendment did provide for suit in district court "to require the enforcement of, the provisions of this Act including any applicable schedule or timetable of compliance, emission requirement, standard of performance, emission standard, or prohibition established pursuant to this Act . . . against any person, including, but not limited to, a governmental instrumentality or agency . . . ." S. 4358, 9 ( 304 (a) (1)), 1 Leg. Hist. 704. Because the [426 U.S. 167, 198] Senate amendment retained previously enacted 302 (e) of the Clean Air Act, see n. 53, supra, defining "person" as "an individual, corporation, partnership, association, State, municipality, and political subdivision of a State," it is clear, as the Senate Report confirms, that in the Senate amendment it was only by virtue of 118 that a State could sue a federal facility for enforcement in district court under 304. S. Rep. No. 91-1196, supra, at 37, 1 Leg. Hist. 437. [Footnote 63 See United States v. United Mine Workers, 330 U.S., at 273 . [Footnote 64 The Senate Committee on Public Works has recently reported such legislation. See S. Rep. No. 94-717 (1976). [Footnote 65 Tr. of Oral Arg. 22. MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST dissent. They agree substantially with the reasoning of the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, and they would reverse the judgment before us on the grounds set out in that opinion. [426 U.S. 167, 200]

liberal

public_entity

federalism

1958-016-02

United States Supreme Court UNITED GAS CO. v. MEMPHIS GAS DIV.(1958) No. 23 Argued: Decided: December 8, 1958 [Footnote * Together with No. 25, Federal Power Commission v. Memphis Light, Gas and Water Division et al., and No. 26, Texas Gas Transmission Corp. et al. v. Memphis Light, Gas and Water Division et al., also on certiorari to the same Court. A natural gas pipeline company regulated under the Natural Gas Act supplies gas to a number of distributing companies under long-term service agreements filed with the Federal Power Commission which were construed by the Commission as obligating the purchasers to pay for the gas during the terms of the agreements not at a single specified rate but at the pipeline company's "going" rates as established from time to time in accordance with the procedures prescribed by the Act. Held: Under agreements so providing, nothing in the Natural Gas Act prevents the pipeline company, without further agreement with the purchasers, from changing its rates by filing new schedules under 4 (d) of the Act, subject to review by the Commission under 4 (e). Pp. 104-116. (a) United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 , distinguished. Pp. 109-111. (b) The procedures prescribed by 4 (d) and 4 (e) are not limited to instances where the parties have mutually agreed upon specific new rates. Pp. 111-114. (c) The Commission correctly determined the meaning of the service agreements here involved. Pp. 114-115. (d) Nothing in the agreements here involved, as interpreted to permit the pipeline company to change its rates under 4 (d) and 4 (e) procedures, is hostile to any of the provisions or purposes of the Act. P. 115. 102 U.S. App. D.C. 77, 250 F.2d 402, reversed. Ralph M. Carson argued the causes for petitioners in Nos. 23 and 26. With him on the brief for petitioner in No. 23 were Thomas Fletcher, C. Huffman Lewis, Morton [358 U.S. 103, 104] E. Yohalem and James J. Higginson. On the brief for petitioners in No. 26 were John T. Cahill for the Texas Gas Transmission Corporation, William S. Tarver for the Southern Natural Gas Co., and Richard J. Connor and Daniel James, of counsel. Solicitor General Rankin argued the cause for the Federal Power Commission. With him on the brief were Willard W. Gatchell and William W. Ross. George E. Morrow and Reuben Goldberg argued the causes and filed a brief for the Memphis Light, Gas and Water Division et al., respondents. Briefs of amici curiae urging affirmance in Nos. 23, 25 and 26 were filed by Everett C. McKeage for the State of California et al., Joe T. Patterson, Attorney General, and Wade H. Creekmore, Assistant Attorney General, for the State of Mississippi, George F. McCanless, Attorney General, and Allison B. Humphreys, Solicitor General, for the State of Tennessee, Stewart G. Honeck, Attorney General, and Roy G. Tulane, Assistant Attorney General, for the State of Wisconsin, John J. O'Connell, Attorney General, and Frank P. Hayes, Assistant Attorney General, for the State of Washington, Garner W. Green for the City of Hattiesburg, Mississippi, and Roger Arnebergh, John C. Banks, Peter Campbell Brown, J. Elliott Drinard, Marshall F. Hurley, J. Frank McKenna, John C. Melaniphy, Charles S. Rhyne and J. Parker Connor for the Member Municipalities of the National Institute of Municipal Law Officers. MR. JUSTICE HARLAN delivered the opinion of the Court. We review a judgment of the Court of Appeals for the District of Columbia Circuit which directed the Federal Power Commission to reject certain rate schedules for [358 U.S. 103, 105] natural gas filed with it by petitioner United Gas Pipe Line Company (United) under 4 (d) of the Natural Gas Act of 1938, 52 Stat. 821, as amended, 15 U.S.C. 717 et seq. United, a regulated natural gas pipeline company, supplies gas to Texas Gas Transmission Corporation (Texas Gas), Southern Natural Gas Company (Southern Gas), and Mississippi Valley Gas Company (Mississippi), 1 under a number of long-term service agreements made and filed with the Commission prior to September 30, 1955, each of which contains the following pricing provision: 2 "All gas delivered hereunder shall be paid for by Buyer under Seller's Rate Schedule [the appropriate rate schedule designation is inserted here], or any effective superseding rate schedules, on file with the Federal Power Commission. This agreement in all respects shall be subject to the applicable provisions of such rate schedules and to the General Terms and Conditions attached thereto and filed with the Federal Power Commission which are by reference made a part hereof." (Italics supplied.) [358 U.S. 103, 106] On September 30, 1955, United, proceeding under 4 (d) of the Natural Gas Act, filed with the Commission new rate schedules, together with supporting data, increasing its prices for gas as of November 1, 1955, by amounts estimated to yield total additional annual revenues of $9,978,000 from sales under the agreements here involved and from other sales also subject to the Commission's jurisdiction. Exercising its powers under 4 (e) of the Act, the Commission ordered a hearing as to the propriety of the new rates, and, except as to those relating to sales of gas for resale for industrial use only, suspended their effectiveness from November 1, 1955, to April 1, 1956, the maximum period of suspension authorized by the statute. 3 Thereafter Texas Gas, Southern Gas, Mississippi, [358 U.S. 103, 107] Memphis, and others claiming an interest in the proceedings were permitted to intervene, and on February 6, 1956, the Commission commenced the taking of evidence as to the lawfulness of United's new rates under the "just and reasonable" standard of 4 (e). On February 27, 1956, this Court announced its decision in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 , in which it was held that United could not escape a contract obligation to furnish Mobile with natural gas at a single specified price for a term of [358 U.S. 103, 108] years by unilaterally filing an increased rate schedule under 4 (d) of the Natural Gas Act. Following that decision the respondents in the present case for the first time moved the Commission to reject United's new rate schedules, claiming that their filing constituted an attempt on the part of United to change unilaterally the terms of its service agreements with Texas Gas, Southern, and Mississippi, and that such an attempt ran afoul of our decision in Mobile. Construing these agreements as in effect constituting undertakings by the purchasers to pay United's "going" rates, as established from time to time in accordance with the procedures prescribed by the Natural Gas Act, the Commission refused to reject United's filings. It distinguished Mobile on the ground that the contract there involved specified a single fixed rate for the gas to be supplied under it which United was contractually foreclosed from changing without the agreement of the purchaser. 16 F. P. C. 19, 15 P. U. R. 3d 279. The Court of Appeals reversed. Accepting for the purposes of its decision the Commission's interpretation of United's service agreements, the Court of Appeals held that nonetheless the Commission lacked "jurisdiction" to consider under 4 (e) the lawfulness of United's new rate schedules. The court regarded Mobile as establishing that 4 (e) applies only to rate changes whose specific amount has been mutually agreed upon between a seller and purchaser, and that where a purchaser has not so agreed, a rate change can be effected only by action of the Commission under 5 (a) of the Act. 4 Since the rates [358 U.S. 103, 109] set forth in United's new schedules had not been agreed to by its customers, the Court of Appeals therefore held that the Commission had no jurisdiction to proceed under 4 (e) to examine them, and that accordingly United's filings under 4 (d) should have been rejected. 102 U.S. App. D.C. 77, 250 F.2d 402. We granted certiorari because of the claim that the Court of Appeals misinterpreted our decision in Mobile, and on the suggestion that its judgment seriously frustrates the proper administration of the Natural Gas Act. 355 U.S. 938 . It is apparent that the Court of Appeals misconceived the import of our decision in Mobile. The contract before the Court in that case required United to furnish natural gas to Mobile at a single fixed price of 10.7 cents per MCF (thousand cubic feet) for a period of 10 years. The contract contained no provision for any different rate, or for changing the agreed rate during the term of the agreement. It was argued by United that the Natural Gas Act gave it the right to abrogate this unqualified contract obligation and increase at will its price of gas to Mobile by filing new rate schedules under 4 (d), subject only to the Commission's approval of such schedules under 4 (e). In rejecting that contention this Court held that the Natural Gas Act, unlike the Interstate Commerce Act, "evinces no purpose to abrogate private [358 U.S. 103, 110] rate contracts as such," that the Act did not "empower natural gas companies to change their contracts unilaterally," and that in this respect regulated natural gas companies stood in no different position under the Act than they would have in the absence of the Act. 350 U.S., at 338 , 340, 343. Since United had contractually bound itself to furnish gas to Mobile throughout the contract term at a particular price, we held that its obligation could be abrogated only by the Commission, in the exercise of its paramount regulatory authority under 5 (a). Ibid., at 344-345. The United contract now before us, as construed by the Federal Power Commission and as viewed by the Court of Appeals for the purposes of decision, is vitally different from that in Mobile. On this view of the contract United bound itself to furnish gas to these customers during the life of the agreements not at a single fixed rate, as in Mobile, but at what in effect amounted to its current "going" rate. Contractually this left United free to change its rates from time to time, subject, of course, to the procedures and limitations of the Natural Gas Act. In such circumstances there is nothing in Mobile which suggests that United was not entitled to file its new schedules under 4 (d), or that the Commission had no jurisdiction to consider them under 4 (e). On the contrary we said in Mobile ( 350 U.S., at 343 ): ". . . except as specifically limited by the Act, the rate-making powers of natural gas companies were to be no different from those they would possess in the absence of the Act: to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent [358 U.S. 103, 111] with this, 4 (d) means simply that no change - neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract - can be made by a natural gas company without the proper notice to the Commission. . . ." The Court of Appeals therefore erred in reading Mobile as limiting the procedures prescribed by 4 (d) and (e) to instances where the parties by mutual agreement had "reformed" a rate contract. The reason these procedures were unavailable to United in Mobile was because the company had bargained away by contract the right to change its rates unilaterally, and not because 4 does not apply to such rate changes whether made pursuant to or in the absence of a contract. Moreover, we find nothing in the scheme of the Natural Gas Act which would justify the restrictive application which the Court of Appeals' decision gives to 4 (d) and (e). Section 4 (c) requires every natural gas company initially to file with the Commission its rates for any "sale subject to the jurisdiction of the Commission, . . . together with all contracts which in any manner affect or relate to such rates . . . ." Section 4 (d) provides for the giving of notice of any change "in any such rate . . . or contract relating thereto . . ." by filing new rate schedules with the Commission and keeping them open for public inspection. 5 And 4 (e) authorizes Commission review of the lawfulness of any such changed rate. 6 The record before us affirmatively shows that United in the filings here at issue has complied with all the duties which these sections in terms impose upon it, and there is nothing in these sections which even remotely implies that 4 (d) and (e) procedures are applicable to [358 U.S. 103, 112] the filing and review of only those rate changes whose amount has been agreed upon by the seller and buyer. 7 The important and indeed decisive difference between this case and Mobile is that in Mobile one party to a contract was asserting that the Natural Gas Act somehow gave it the right unilaterally to abrogate its contractual undertaking, whereas here petitioner seeks simply to assert, in accordance with the procedures specified by the Act, rights expressly reserved to it by contract. Mobile makes it plain that " 4 (d) on its face indicates no more than that otherwise valid changes cannot be put into effect without giving the required notice to the Commission." 350 U.S., at 339 -340. (Italics supplied.) The necessary corollary of this proposition is that changes which in fact are "otherwise valid" in the light of the relationship between the parties can be put into effect under 4 (d) by a seller through giving the required notice to the Commission. Mobile expressly notes that in the absence of any contractual relationship rates determined ex parte by the seller may be filed under 4 (d). 350 U.S., at 343 . We perceive no tenable basis of distinction [358 U.S. 103, 113] between the filing of such a rate in the absence of contract and a similar filing under an agreement which explicitly permits it. Thus Mobile, properly understood, affirmatively establishes United's right to proceed under 4 in the circumstances of this case. As we there said, "The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act." 350 U.S., at 343 . United, like the seller of an unregulated commodity, has the right in the first instance to change its rates as it will, unless it has undertaken by contract not to do so. The Act comes into play as to rate changes only in (1) imposing upon the seller the procedural requirement of filing timely notice of change, (2) giving the Commission authority to review such changes, and (3) authorizing the Commission, in the case of rates for sales of gas for other than exclusively industrial use, to suspend the new rates for a five-month period and thereafter to require the posting of a refund bond pending a determination of the lawfulness of the rates as changed. (See 4 (d), (e), at note 3, supra.) It seems plain that Congress, in so drafting the statute, was not only expressing its conviction that the public interest requires the protection of consumers from excessive prices for natural gas, but was also manifesting its concern for the legitimate interests of natural gas companies in whose financial stability the gas-consuming public has a vital stake. Business reality demands that natural gas companies should not be precluded by law from increasing the prices of their product whenever that is the economically necessary means of keeping the intake and outgo of their revenues in proper balance; otherwise procurement of the vast sums necessary for the maintenance and expansion of their systems through equity and debt financing would become most difficult, if not impossible. This concern was surely a proper one for Congress [358 U.S. 103, 114] to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603 , and we think that it did so not only by preserving the "integrity" of private contractual arrangements for the supply of natural gas, 350 U.S., at 344 (subject of course to any overriding authority of the Commission), but also by providing in 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review. What has been said disposes of the question whether anything in the Natural Gas Act forbids a seller to change its rates pursuant to 4 procedures simply because its customers have not agreed to the amount of the rate as changed. There remains the question whether United's service agreements reserved to it the power to make rate changes in this manner. The Commission found that the agreements so intended, but on its view of the case the Court of Appeals found it unnecessary to decide the question. We think it would be both unnecessary and dilatory for us to remand the case to the Court of Appeals for consideration of that issue, which involves matters peculiarly within the area of the Commission's special competence and as to which we could hardly be aided by a further examination of the record by the Court of Appeals. Indeed neither side suggests such a course, even alternatively, both asking us to decide the case in its present posture. After scrutinizing the record we are satisfied that the Commission's determination as to the meaning of the service agreements here involved was amply supported both factually and legally. There is no necessity for us to embark upon a detailed discussion of the various contentions made by the parties, none of which appears to have been overlooked or misapprehended by the Commission. It seems sufficient to say that the record shows [358 U.S. 103, 115] that these agreements are typical of the "tariff-and-service" arrangements contemplated by Commission Order No. 144, 18 CFR 154.1 et seq.; 8 that until this case no one connected with the industry seems to have thought that agreements of this sort precluded natural gas companies from changing their rates in accordance with and subject to 4 (d) and (e) procedures; 9 and that the respondents' present contrary contentions had their sole genesis in a mistaken view of our decision in the Mobile case. Beyond this, we find nothing in these agreements, as interpreted by the Federal Power Commission, which is hostile to any of the provisions or purposes of the Natural Gas Act. 10 [358 U.S. 103, 116] For the reasons given we hold that the Court of Appeals was in error in concluding that in the circumstances of this case United could not proceed to change its rates by filing under 4 (d) of the statute. Reversed. MR. JUSTICE CLARK took no part in the consideration or decision of these cases. Footnotes [Footnote 1 Mississippi, a natural gas distributing company, also purchases gas from Texas Gas and Southern Gas. Respondent Memphis Light, Gas and Water Division, an agency of the City of Memphis engaged in the distribution of natural gas, purchases gas from Texas Gas, and has no direct contract relations with United. However, it is obligated to reimburse Texas Gas for any increase in the latter's cost of gas acquired from United. [Footnote 2 Originally there were seven such agreements, of which five contained the provision quoted in the text. However, the other two were found by the Commission, and assumed by the Court of Appeals, to contain the equivalent of that provision, and one of the two was replaced by a superseding agreement explicitly containing the provision very shortly after the filing here at issue. [Footnote 3 Sections 4 (d) and 4 (e) of the National Gas Act read as follows: 4 (d): "Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such [filed] rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published." 4 (e): "Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or [358 U.S. 103, 107] service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided, That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible." The Commission did not suspend the rates applicable to sales for resale for industrial use only, as it has always taken the view that under the statute it is without power to suspend the effectiveness of these rates. [Footnote 4 5 (a): "Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or [358 U.S. 103, 109] that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates." [Footnote 5 See note 3, supra. [Footnote 6 See note 3, supra. [Footnote 7 A majority of the court below thought that such a limitation should be imported into the Act to fend against "debilitating Section 5 (a)" by making it possible for a seller to reserve by contract the right to avoid "the delay and the more stringent proof requirements of Section 5 (a)" through utilizing 4 procedures. 102 U.S. App. D.C., at 82, note 3, 250 F.2d, at 407, note 3. Apart from the fact that this approach seems to assume a negative answer to the very question at issue - whether Congress intended that natural gas companies should be permitted, so far as the statute is concerned, to file rate changes under 4 (d) without securing prior customer agreement to the changed rate - it may be pointed out that the Commission appears consistently to have viewed the proof requirements under 4 (e) and 5 (a) as equally "stringent." See FPC, Thirty-fifth Annual Report (1955), at 106; Thirty-fourth Annual Report (1954), at 106; Thirty-third Annual Report (1953), at 99. [Footnote 8 When the Natural Gas Act became law in 1938, natural gas companies were permitted to file their existing sales contracts as rate schedules under 4 (c). Schedules in this form were extremely lengthy, unwieldy, and otherwise unsatisfactory in that it was most difficult for customers, competitors, and the Commission itself to ascertain whether rates to various customers were unduly discriminatory or otherwise unreasonable. The Commission therefore proposed regulations requiring the conversion of rate contracts into a "tariff-and-service-agreement" system, and these regulations were promulgated in October 1948 as Order No. 144. Under the tariff-and-service-agreement system, the agreement between buyer and seller does not itself contain a price term, but rather refers to rate schedules of general applicability on file with the Commission. It is noteworthy that Order No. 144 expressly contemplates that a seller may reserve the "privilege" of filing rate changes under 4 of the Act. 18 CFR 154.38 (d) (3). [Footnote 9 Between the date of the Mobile decision and that of the court below it appears that only three purchasers of natural gas under service agreements similar to those here involved (one of them Mississippi, a respondent here) moved to dismiss changed rate schedules on the ground that the agreements did not permit their filing, although some 600 such purchasers were affected by rate changes filed during that period. [Footnote 10 Respondents argue that the "effective superseding rate" clause of the agreements must be read as referring only to superseding rates established after a 5 (a) proceeding, because it would be unreasonable [358 U.S. 103, 116] to find that the buyer-signatories to the agreements had intended to authorize United to change its "industrial" rates by a 4 (d) filing in light of the fact that such rates are not subject to suspension and refund under the statute. Apart from the circumstances that (1) United's "industrial" sales under these agreements appear to have been a relatively minor factor; (2) the clause would be entirely superfluous if construed as respondents would have it, since as a matter of law rate changes ordered by the Commission after a 5 (a) proceeding would have been incorporated into the agreements, Northern Pacific R. Co. v. St. Paul & Tacoma Lumber Co., 4 F.2d 359 (C. A. 9th Cir. 1925), appeal dismissed, 269 U.S. 535 ; Market Street R. Co. v. Pacific Gas & Electric Co., 6 F.2d 633 (D.C. N. D. Cal. 1925), appeal dismissed, 271 U.S. 691 ; and (3) the "industrial" rates of United have consistently been below its other rates, the force of respondents' contention is wholly destroyed by the fact that it appears that the buyer-signatories to the agreements are entitled by contract with their customers to pass on any rate increases effected by United. Under these circumstances it can hardly be said to be inconceivable, or even unlikely, that the buyers would have been willing to authorize United to change its "going" rates to them under 4 (d). MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting. This decision marks, I think, a retreat from our holding in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 . In every case the facts are, of course, different from those in the precedents. But here the difference [358 U.S. 103, 117] does not seem to me to be fundamental. The contract rate in the Mobile case which was sought to be changed unilaterally was fixed in a service agreement. Here the contract rate which was changed unilaterally was in the seller's rate schedule on file with the Commission. 1 I thought the essence of our ruling in the Mobile case was in the words: "the Natural Gas Act does not empower natural gas companies unilaterally to change their contracts." 350 U.S., at 344 . That was emphasized over and again especially in the discussion of when unilateral and bilateral changes in rates were permissible: "to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer." 350 U.S., at 343 . Like the judges of the Court of Appeals, I thought that this meant that all 4 (d) rates had to be rates agreed upon by the parties to the contract. That is the reason, I thought, why Congress made the control of the Commission over such rates so slight. That the supervision is restricted is evidenced by two elements in 4 (e): first, the Commission can suspend those agreed-upon [358 U.S. 103, 118] changes for no more than five months; second, no power of suspension whatsoever is given to rates "for resale for industrial use only." 2 But now we are told that the requirement of bilateral rate making is satisfied by the provision in the contract that the controlling rate is the "effective" rate and an "effective" rate is one which the selling company alone chooses to fix and file under 4. I find insuperable difficulties with that view. The contract does not say that the buyer will consent to any rate increase which the seller may file. It is an agreement to pay whatever may be the "effective" rate; it is not an agreement to the establishment of that new rate. The construction of this tariff is a question of law (see Great No. R. Co. v. Merchants Elev. Co., 259 U.S. 285, 290 ) which we should resolve in light of the regulatory system that Congress has imposed on the industry. The construction adopted by the Court has dire consequences. It makes a shambles of the Act so far as consumer [358 U.S. 103, 119] interests are concerned; and they are the ones the Act was designed to protect. 3 The ruling sacrifices these interests in the cause of those who exploit this field. Now the regulatory agency is left powerless to prevent a selling company, after the 30-day waiting period, from making consumers pay immediately whatever rate the company fixes. There is power in the Commission to suspend the new rate for five months; but in case of industrial rates even that limited power of suspension is absent. If the Commission should ultimately decide in a 4 (e) proceeding that the new rates are not just and reasonable, the victory for the consumers may be an illusory one, for administrative difficulties make it doubtful that they will receive the benefit of any refunds. 4 And if the increases are in industrial rates, it appears that the Commission has no authority to require a refund of any unjustified increase collected before its order setting aside the increase. Even when the Commission catches up with the new high rate fixed by the selling company at its will and strikes it down, its action promises to have only a fleeting effect. The pipeline company can now in its unfettered discretion raise the rates again simply by [358 U.S. 103, 120] filing a new rate; and if it is an industrial rate, it cannot even be suspended. 5 I would not construe the Act so as to produce such destructive consequences. I would allow the 4 rates to embrace only the "rates agreed upon" by the pipeline and the customer, as we stated in the Mobile case, applying 5 to all other cases. I fear that our failure to do so turns the real regulation over to the pipeline companies. I cannot imagine that the Congress that passed this Act envisaged any such tragic result for consumers; and we are not driven to it by unambiguous terms of the Act. [Footnote 1 At the time the contract in Mobile was entered into the industry practice was to set rates in the service contracts which were filed with the Commission as the rate schedules. But in 1948 the Commission promulgated Order 144 requiring the conversion of all rate contracts into tariff-and-service agreement form. From that time on rates have not been included in the service contracts; rather, they are included in rate schedules of general applicability on file with the Commission to which reference is made in the individual service agreements. See 18 CFR 154.1 et seq. Hence the difference in the price provision in the contracts involved here from that involved in Mobile. [Footnote 2 Section 4 (e) provides in part: "Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided. That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only . . . ." [Footnote 3 See Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 610 . Protection of the consumer interest was to be done through occupying a field from which the States had been barred. H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 2. [Footnote 4 In its 1953 report to Congress the Commission recognized that "the collection of higher rates under bond, while providing protection to the pipeline company against ultimate loss in revenues, is unsatisfactory, burdensome, and presents many difficult problems for the company as well as for the distribution utilities which must pay the higher rates. The problem of distributing impounded funds to consumers in the event that proposed rate increases are denied even in part is time-consuming and expensive." Report, Federal Power Commission, 1953, p. 101. [Footnote 5 As stated by the State of Washington, amicus curiae, "By the legally available expedient of filing another schedule of increased rates under 4 (d), any relief obtained by a Commission order after review could be effectively nullified 30 days after it was obtained." [358 U.S. 103, 121]

conservative

organization

economic_activity

1986-004-01

United States Supreme Court KELLY v. ROBINSON(1986) No. 85-1033 Argued: October 8, 1986Decided: November 12, 1986 In 1980, respondent pleaded guilty in a Connecticut state court to a larceny charge based on her wrongful receipt of welfare benefits from the Connecticut Department of Income Maintenance. She was sentenced to a prison term, but the court suspended execution of the sentence and placed her on probation for five years. As a condition of probation, the court ordered respondent to make restitution through monthly payments to the Connecticut Office of Adult Probation until the end of her probation period. Under Connecticut statutes, restitution payments are sent to the Probation Office and are then forwarded to the victim. In 1981, respondent filed a voluntary petition under Chapter 7 of the Bankruptcy Code in Bankruptcy Court, listing the restitution obligation as a debt. The Connecticut agencies, although notified, did not file proofs of claim or objections to discharge, and the Bankruptcy Court subsequently granted respondent a discharge. She made no further restitution payments. After the Probation Office informed her that it considered the restitution obligation nondischargeable, she filed a proceeding against petitioner state officials in the Bankruptcy Court, seeking a declaration that the restitution obligation was discharged. The court concluded that even if the restitution obligation was a debt subject to bankruptcy jurisdiction, it was automatically nondischargeable under 523(a)(7) of the Bankruptcy Code, which provides that a discharge in bankruptcy does not affect any debt that "is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss." The District Court adopted the Bankruptcy Court's proposed disposition of the case, but the Court of Appeals reversed. Held: Section 523(a)(7) preserves from discharge in Chapter 7 any condition a state criminal court imposes as part of a criminal sentence. Thus, restitution obligations, imposed as conditions of probation in state criminal proceedings, are not dischargeable. Pp. 43-53. (a) Despite the language of the earlier Bankruptcy Act of 1898 that apparently allowed criminal penalties to be discharged, most courts refused to allow a discharge to affect a state criminal court's judgment. When the present Bankruptcy Code was enacted in 1978, there was a [479 U.S. 36, 37] widely accepted judicial exception to discharge for criminal sentences, including restitution obligations imposed as part of such sentences. In construing the scope of bankruptcy codifications, this Court has followed the rule that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494 . Pp. 43-47. (b) The basis for the judicial exception here is the deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings. Although it might be true that Connecticut officials could have ensured continued enforcement of the criminal judgment against respondent by objecting to discharge under the Code, that fact does not justify an interpretation of the Code that is contrary to the long-prevailing view that fines and penalties are not affected by a discharge. Moreover, reliance on a right to appear and object to discharge would create uncertainties and impose undue burdens on state officials. The prospect of federal remission of judgments imposed by state criminal judges would hamper the flexibility of those judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems. Pp. 47-49. (c) On its face, 523(a)(7) does not compel the conclusion that a discharge voids restitution orders imposed as conditions of probation by state courts. Nothing in the House and Senate Reports indicates that this language should be read so intrusively. Section 523(a)(7) protects traditional criminal fines. Although restitution, unlike traditional fines, is forwarded to the victim and may be calculated by reference to the amount of harm the offender has caused, neither of the statute's qualifying clauses - namely, the fines must be "to and for the benefit of a governmental unit," and "not compensation for pecuniary loss" - allows the discharge of a criminal judgment that takes the form of restitution. The decision to impose restitution generally does not turn on the victim's injury, but on the penal goals of the State and the defendant's situation. Pp. 50-53. 776 F.2d 30, reversed. POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 53. Carl Schuman, Assistant States' Attorney of Connecticut, argued the cause and filed briefs for petitioners. [479 U.S. 36, 38] Francis X. Dineen argued the cause and filed a brief for respondent. * [Footnote * Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Susan Crump and David Crump, and by the Attorneys General for their respective States as follows: Charles K. Graddick of Alabama, Harold M. Brown of Alaska, Robert K. Corbin of Arizona, John K. Van de Kamp of California, Duane Woodard of Colorado, Charles M. Oberly III of Delaware, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, James T. Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, Steven L. Beshear of Kentucky, William J. Guste, Jr., of Louisiana, Stephen Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Michael T. Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Irwin I. Kimmelman of New Jersey, Paul Bardacke of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, Michael C. Turpen of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Arlene Violet of Rhode Island, T. Travis Medlock of South Carolina, W. J. Michael Cody of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, Bronson C. La Follette of Wisconsin, and A. G. McClintock of Wyoming; and for the National Governors' Association et al. by Benna Ruth Solomon, Beate Bloch, Philip A. Lacovara, and Susan L. Thorner. JUSTICE POWELL delivered the opinion of the Court. We granted review in this case to decide whether restitution obligations, imposed as conditions of probation in state criminal proceedings, are dischargeable in proceedings under Chapter 7 of the Bankruptcy Code. I In 1980, Carolyn Robinson pleaded guilty to larceny in the second degree. The charge was based on her wrongful receipt of $9,932.95 in welfare benefits from the Connecticut Department of Income Maintenance. On November 14, 1980, the Connecticut Superior Court sentenced Robinson to a prison term of not less than one year nor more than three years. The court suspended execution of the sentence and [479 U.S. 36, 39] placed Robinson on probation for five years. As a condition of probation, the judge ordered Robinson to make restitution 1 to the State of Connecticut Office of Adult Probation (Probation Office) at the rate of $100 per month, commencing January 16, 1981, and continuing until the end of her probation. 2 On February 5, 1981, Robinson filed a voluntary petition under Chapter 7 of the Bankruptcy Code, 11 U.S.C. 701 et seq., in the United States Bankruptcy Court for the District of Connecticut. That petition listed the restitution obligation as a debt. On February 20, 1981, the Bankruptcy Court notified both of the Connecticut agencies of Robinson's petition and informed them that April 27, 1981, was the deadline for filing objections to discharge. The agencies did not file proofs of claim or objections to discharge, apparently because they took the position that the bankruptcy would not affect the conditions of Robinson's probation. Thus, the agencies did not participate in the distribution of Robinson's estate. On May 14, 1981, the Bankruptcy Court granted Robinson a discharge. See 727. At the time Robinson received her discharge in bankruptcy, she had paid $450 in restitution. On May 20, 1981, her attorney wrote the Probation Office that she believed the discharge had altered the conditions of Robinson's probation, voiding the condition that she pay restitution. Robinson made no further payments. The Connecticut Probation Office did not respond to this letter until February 1984, when it informed Robinson that it [479 U.S. 36, 40] considered the obligation to pay restitution nondischargeable. Robinson responded by filing an adversary proceeding in the Bankruptcy Court, seeking a declaration that the restitution obligation had been discharged, as well as an injunction to prevent the State's officials from forcing Robinson to pay. After a trial, the Bankruptcy Court entered a memorandum and proposed order, concluding that the 1981 discharge in bankruptcy had not altered the conditions of Robinson's probation. Robinson v. McGuigan, 45 B. R. 423 (1984). The court adopted the analysis it had applied in a similar case decided one month earlier, In re Pellegrino (Pellegrino v. Division of Criminal Justice), 42 B. R. 129 (1984). In Pellegrino, the court began with the Bankruptcy Code's definitional sections. First, 101(11) defines a "debt" as a "liability on a claim." In turn, 101(4) defines a "claim" as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." Finally, 101(9) defines a "creditor" as an "entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor." The Pellegrino court then examined the statute under which the Connecticut judge had sentenced the debtor to pay restitution. Restitution appears as one of the condition of probation enumerated in Conn. Gen. Stat. 53a-30 (1985). Under that section, restitution payments are sent to the Probation Office. The payments then are forwarded to the victim. Although the Connecticut penal code does not provide for enforcement of the probation conditions by the victim, it does authorize the trial court to issue a warrant for the arrest of a criminal defendant who has violated a condition of probation. 53a-32. Because the Connecticut statute does not allow the victim to enforce a right to receive payment, the court concluded [479 U.S. 36, 41] that neither the victim nor the Probation Office had a "right to payment," and hence neither was owed a "debt" under the Bankruptcy Code. It argued: "Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose." 42 B. R., at 133. The court acknowledged the tension between its conclusion and the Code's expansive definition of debt, but found an exception to the statutory definition in "the long-standing tradition of restraint by federal courts from interference with traditional functions of state governments." Id., at 134. The court concluded that, even if the probation condition was a debt subject to bankruptcy jurisdiction, it was nondischargeable under 523(a)(7) of the Code. That subsection provides that a discharge in bankruptcy does not affect any debt that "is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss." The court also concluded that the purpose of the restitution condition was "to promote the rehabilitation of the offender, not to compensate the victim." 42 B. R., at 137. It specifically rejected the argument that the restitution must be deemed compensatory because the amount precisely matched the victim's loss. It noted that the state statute allows an offender to "make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby," Conn. Gen. Stat. 53a-30(a)(4) (1985). In its view, the Connecticut statute focuses "upon the offender and not on the victim, and . . . restitution is part of the criminal penalty rather than compensation for a victim's actual loss." 42 B. R., at 137. Thus, the Bankruptcy Court held that the bankruptcy discharge had not affected the conditions of Pellegrino's probation. The United States District Court for [479 U.S. 36, 42] the District of Connecticut adopted the Bankruptcy Court's proposed dispositions of Pellegrino and this case without alteration. The Court of Appeals for the Second Circuit reversed. In re Robinson, 776 F.2d 30 (1985). It first examined the Code's definition of debt. Although it recognized that most courts had reached the opposite conclusion, the court decided that a restitution obligation imposed as a condition of probation is a debt. It relied on the legislative history of the Code that evinced Congress' intent to broaden the definition of "debt" from the much narrower definition of the Bankruptcy Act of 1898. The court also noted that anomalies might result from a conclusion that such an obligation is not a debt. Most importantly, nondebt status would deprive a State of the opportunity to participate in the distribution of the debtor's estate. Having concluded that restitution obligations are debts, the court turned to the question of dischargeability. The court stated that the appropriate Connecticut agency probably could have avoided discharge of the debt if it had objected under 523(a)(2) or 523(a)(4) of the Code. 3 As no objections to discharge were filed, the court concluded that the State could rely only on 523(a)(7), the subsection that provides for automatic nondischargeability for certain debts. 4 [479 U.S. 36, 43] The court then looked to the text of the Connecticut statute to determine whether Robinson's probation condition was "compensation for actual pecuniary loss" within the meaning of 523(a)(7). But where the Bankruptcy Court had considered the entire state probation system, the Court of Appeals focused only on the language that allows a restitution order to be assessed "for the loss or damage caused [by the crime]," Conn. Gen. Stat. 53a-30(a)(4) (1985). The court thought this language compelled the conclusion that the probation condition was "compensation for actual pecuniary loss." It held, therefore, that this particular condition of Robinson's probation was not protected from discharge by 523(a)(7). Accordingly, it reversed the District Court. We granted the State's petition for a writ of certiorari. 475 U.S. 1009 (1986). We have jurisdiction to review the judgment of the Court of Appeals under 28 U.S.C. 1254(1). We reverse. II The Court of Appeals' decision focused primarily on the language of 101 and 523 of the Code. Of course, the "starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (POWELL, J., concurring). But the text is only the starting point. As JUSTICE O'CONNOR explained last Term: "`"In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy."'" Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 221 (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956) (in turn quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849))). In this case, we must consider the language of 101 and 523 [479 U.S. 36, 44] in light of the history of bankruptcy court deference to criminal judgments and in light of the interests of the States in unfettered administration of their criminal justice systems. A Courts traditionally have been reluctant to interpret federal bankruptcy statutes to remit state criminal judgments. The present text of Title 11, commonly referred to as the Bankruptcy Code, was enacted in 1978 to replace the Bankruptcy Act of 1898, ch. 541, 30 Stat. 544. 5 The treatment of criminal judgments under the Act of 1898 informs our understanding of the language of the Code. First, 57 of the Act established the category of "allowable" debts. See 3 Collier on Bankruptcy § 57 (14th ed. 1977). Only if a debt was allowable could the creditor receive a share of the bankrupt's assets. See 65a. For this case, it is important to note that 57j excluded from the class of allowable debts penalties owed to government entities. That section provided: "Debts owing to the United States, a State, a county, a district, or a municipality as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose." 30 Stat. 561. Second, 63 established the separate category of "provable" debts. See 3A Collier on Bankruptcy § 63 (14th ed. 1975). Section 17 provided that a discharge in bankruptcy "release[d] a bankrupt from all of his provable debts," subject to several exceptions listed in later portions of 17. Although 17 specifically excepted four types of debts from discharge, it did not mention criminal penalties of any kind. The most natural construction of the Act, therefore, would [479 U.S. 36, 45] have allowed criminal penalties to be discharged in bankruptcy, even though the government was not entitled to a share of the bankrupt's estate. Congress had considered criminal penalties when it passed the Act; it clearly made them nonallowable. The failure expressly to make them nondischargeable at the same time offered substantial support for the view that the Act discharged those penalties. But the courts did not interpret the Act in this way. Despite the clear statutory language, most courts refused to allow a discharge in bankruptcy to affect the judgment of a state criminal court. In the leading case, the court reasoned: "It might be admitted that sections 63 and 17 of the bankrupt act, if only the letter of those provisions be looked to, would embrace [criminal penalties]; but it is well settled that there may be cases in which such literal construction is not admissible. . . . It may suffice to say that nothing but a ruling from a higher court would convince me that congress, by any provision of the bankrupt act, intended to permit the discharge, under its operations, of any judgment rendered by a state or federal court imposing a fine in the enforcement of criminal laws. . . . The provisions of the bankrupt act have reference alone to civil liabilities, as demands between debtor and creditors, as such, and not to punishment inflicted pro bono publico for crimes committed." In re Moore, 111 F. 145, 148-149 (WD Ky. 1901). 6 [479 U.S. 36, 46] This reasoning was so widely accepted by the time Congress enacted the new Code that a leading commentator could state flatly that "fines and penalties are not affected by a discharge." See 1A Collier on Bankruptcy § 17.13, pp. 1609-1610, and n. 10 (14th ed. 1978). Moreover, those few courts faced with restitution obligations imposed as part of criminal sentences applied the same reasoning to prevent a discharge in bankruptcy from affecting such a condition of a criminal sentence. For instance, four years before Congress enacted the Code, a New York Supreme Court stated: "A discharge in bankruptcy has no effect whatsoever upon a condition of restitution of a criminal sentence. A bankruptcy proceeding is civil in nature and is intended to relieve an honest and unfortunate debtor of his debts and to permit him to begin his financial life anew. A condition of restitution in a sentence of probation is a part of the judgment of conviction. It does not create a debt nor a debtor-creditor relationship between the persons making and receiving restitution. As with any other condition of a probationary sentence it is intended as a means to insure the defendant will lead a law-abiding life thereafter." State v. Mosesson, 78 Misc. 2d 217, 218, 356 N. Y. S. 2d 483, 484 (1974) (citations omitted). 7 Thus, Congress enacted the Code in 1978 against the background of an established judicial exception to discharge for criminal sentences, including restitution orders, an exception created in the face of a statute drafted with considerable care and specificity. [479 U.S. 36, 47] Just last Term we declined to hold that the new Bankruptcy Code silently abrogated another exception created by courts construing the old Act. In Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494 (1986), a trustee in bankruptcy asked us to hold that the 1978 Code had implicitly repealed an exception to the trustee's abandonment power. Courts had created that exception out of deference to state health and safety regulations, a consideration comparable to the States' interests implicated by this case. We stated: "The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. The Court has followed this rule with particular care in construing the scope of bankruptcy codifications. If Congress wishes to grant the trustee an extraordinary exemption from nonbankruptcy law, `the intention would be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt.'" Id., at 501 (quoting Swarts v. Hammer, 194 U.S. 441, 444 (1904)) (citations omitted). B Our interpretation of the Code also must reflect the basis for this judicial exception, a deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings. The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States. This Court has emphasized repeatedly "the fundamental policy against federal interference with state criminal prosecutions." Younger v. Harris, 401 U.S. 37, 46 (1971). The Court of Appeals nevertheless found support for its holding in the fact that Connecticut officials probably could have ensured continued enforcement of their court's criminal judgment against Robinson had they objected [479 U.S. 36, 48] to discharge under 523(c). Although this may be true in many cases, it hardly justifies an interpretation of the 1978 Act that is contrary to the long-prevailing view that "fines and penalties are not affected by a discharge," 1A Collier on Bankruptcy § 17.13, p. 1610 (14th ed. 1978). Moreover, reliance on a right to appear and object to discharge would create uncertainties and impose undue burdens on state officials. In some cases it would require state prosecutors to defend particular state criminal judgments before federal bankruptcy courts. 8 As JUSTICE BRENNAN has noted, federal adjudication of matters already at issue in state criminal proceedings can be "an unwarranted and unseemly duplication of the State's own adjudicative process." Perez v. Ledesma, 401 U.S. 82, 121 (1971) (opinion concurring in part and dissenting in part). 9 Also, as Robinson's attorney conceded at oral argument, some restitution orders would not be protected from discharge even if the State did appear and enter an objection to discharge. For example, a judge in a negligent homicide case might sentence the defendant to probation, conditioned on the defendant's paying the victim's husband compensation for the loss the husband sustained when the defendant killed his wife. It is not clear that such a restitution order would [479 U.S. 36, 49] fit the terms of any of the exceptions to discharge listed in 523 other than 523(a)(7). Thus, this interpretation of the Code would do more than force state prosecutors to defend state criminal judgments in federal bankruptcy court. In some cases, it could lead to federal remission of judgments imposed by state criminal judges. This prospect, in turn, would hamper the flexibility of state criminal judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems. 10 We do not think Congress lightly would limit the rehabilitative and deterrent options available to state criminal judges. In one of our cases interpreting the Act, Justice Douglas remarked: "[W]e do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction." Bank of Marin v. England, 385 U.S. 99, 103 (1966). This Court has recognized that the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief. See Younger v. Harris, supra, at 44-45. This reflection of our federalism also must influence our interpretation of the Bankruptcy Code in this case. 11 [479 U.S. 36, 50] III In light of the established state of the law - that bankruptcy courts could not discharge criminal judgments - we have serious doubts whether Congress intended to make criminal penalties "debts" within the meaning of 101(4). 12 But we need not address that question in this case, because we hold that 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence. The relevant portion of 523(a)(7) protects from discharge any debt "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss." This language is subject to interpretation. On its face, 523(a)(7) certainly does not compel the conclusion reached by the Court of Appeals, that a discharge in bankruptcy voids restitution orders imposed as conditions of probation by state courts. Nowhere in the House and Senate Reports is there any indication that this language should be read so intrusively. 13 [479 U.S. 36, 51] If Congress had intended, by 523(a)(7) or by any other provision, to discharge state criminal sentences, "we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage," TVA v. Hill, 437 U.S. 153, 209 (1978) (POWELL, J., dissenting). Our reading of 523(a)(7) differs from that of the Second Circuit. On its face, it creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures. Congress included two qualifying phrases; the fines must be both "to and for the benefit of a governmental unit," and "not compensation for actual pecuniary loss." Section 523(a)(7) protects traditional criminal fines; it codifies the judicially created exception to discharge for fines. We must decide whether the result is altered by the two major differences between restitution and a traditional fine. Unlike [479 U.S. 36, 52] traditional fines, restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused. In our view, neither of the qualifying clauses of 523(a)(7) allows the discharge of a criminal judgment that takes the form of restitution. The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment "for the benefit of" the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim's injury, but on the penal goals of the State and the situation of the defendant. As the Bankruptcy Judge who decided this case noted in Pellegrino: "Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose." 42 B. R., at 133. This point is well illustrated by the Connecticut statute under which the restitution obligation was imposed. The statute authorizes a judge to impose any of eight specified conditions of probation, as well as "any other conditions reasonably related to his rehabilitation." Conn. Gen. Stat. 53a-30(a)(9) (1985). Clause (4) of that section authorizes a judge to require that the defendant "make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance." [479 U.S. 36, 53] This clause does not require imposition of restitution in the amount of the harm caused. Instead, it provides for a flexible remedy tailored to the defendant's situation. Because criminal proceedings focus on the State's interests in rehabilitation and punishment, rather than the victim's desire for compensation, we conclude that restitution orders imposed in such proceedings operate "for the benefit of" the State. Similarly, they are not assessed "for . . . compensation" of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. 14 Those interests are sufficient to place restitution orders within the meaning of 523(a)(7). In light of the strong interests of the States, the uniform construction of the old Act over three-quarters of a century, and the absence of any significant evidence that Congress intended to change the law in this area, we believe this result best effectuates the will of Congress. Accordingly, the decision of the Court of Appeals for the Second Circuit is Reversed. Footnotes [Footnote 1 Connecticut Gen. Stat. 53a-30 (1985) sets out the conditions a trial court may impose on a sentence of probation. Clause 4 of that section authorizes a condition that the defendant "make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance." [Footnote 2 There is some uncertainty about the total amount Robinson was ordered to pay. Although the judge imposed restitution in a total amount of $9,932.95, five years of payments at $100 a month total only $6,000. [Footnote 3 Section 523(a)(2)(A) protects from discharge debts "for obtaining money, property, services, or an extension, renewal, or refinance of credit, by . . . false pretenses, a false representation, or actual fraud." Section 523(a)(4) protects from discharge debts "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." Under 523(a)(4) debts that are protected from discharge only by 523(a)(2) or 523(a)(4) are discharged unless the creditor files an objection to discharge during the bankruptcy proceedings. Because Robinson was convicted of larceny, one of the debts listed in 523(a)(4), it is quite likely that the Bankruptcy Court, if it had found the obligation to be a "debt," would have found it nondischargeable under that subsection. [Footnote 4 The requirement that creditors object to discharge is limited on its face to §§ (2), (4), and (6) of 523(a). Because § 7 is not listed there, debts [479 U.S. 36, 43] described in that paragraph are automatically nondischargeable, under the general rule prescribed in the opening clause of 523(a) (providing that a "discharge under section 727 . . . of this title does not discharge an individual debtor from any debt" listed in the paragraphs that follow). [Footnote 5 Congress amended the Bankruptcy Act several times between 1898 and 1978. Congress also made numerous technical changes to the Code in the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, 98 Stat. 380. None of those changes are relevant to this decision. [Footnote 6 Although courts differed as to the boundaries of the exception, particularly in cases involving nonmonetary sanctions, or sanctions imposed in civil proceedings, the reasoning of Moore was widely accepted. See, e. g., Parker v. United States, 153 F.2d 66, 71 (CA1 1946) (citing Moore and noting that "[i]t was not in the contemplation of Congress that the federal bankruptcy power should be employed to pardon a bankrupt from the consequences of a criminal offense"); Zwick v. Freeman, 373 F.2d 110, 116 (CA2 1967) (citing Moore and stating that "governmental sanctions are not regarded as debts even when they require monetary payments"). We have found only one federal-court decision allowing a discharge under the [479 U.S. 36, 46] Act to affect a sentence imposed by a criminal court. In re Alderson, 98 F. 588 (W. Va. 1899). [Footnote 7 For other decisions adopting this reasoning, see People v. Topping Bros., 79 Misc. 2d 260, 262, 359 N. Y. S. 2d 985, 987-988 (Crim. Ct. 1974); People v. Washburn, 97 Cal. App. 3d 621, 625-626, 158 Cal. Rptr. 822, 825 (1979). [Footnote 8 In many cases, of course, principles of issue preclusion would obviate the need for the bankruptcy court to reexamine factual questions, or interpret state law. But differences between the elements of crimes and the provisions of 523 frequently might hinder the application of issue preclusion. Moreover, apart from the burden on state officials of following and participating in bankruptcy proceedings, it is unseemly to require state prosecutors to submit the judgments of their criminal courts to federal bankruptcy courts. [Footnote 9 Of course, federal courts often duplicate state adjudicative processes when they consider petitions for the writ of habeas corpus. But explicit reference in the Constitution, Art. I, 9, cl. 2, as well as several federal statutes, testifies to the importance of the writ of habeas corpus. Here, the case for relitigation in the federal courts rests only on the ambiguous words of the Bankruptcy Code. [Footnote 10 Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine. See Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 937-941 (1984). [Footnote 11 Justice Frankfurter advocated a similar approach to the interpretation of regulatory statutes that infringe upon important state interests: "The task is one of accommodation as between assertions of new federal authority and historic functions of the individual states. Federal [479 U.S. 36, 50] legislation of this character cannot therefore be construed without regard to the implications of our dual system of government. . . . The underlying assumptions of our dual form of government, and the consequent presuppositions of legislative draftsmanship which are expressive of our history and habits, cut across what might otherwise be the implied range of legislation. The history of congressional legislation . . . justif[ies] the generalization that, when the Federal Government takes over such local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating are reasonably explicit." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539-540 (1947). [Footnote 12 We recognize, as the Court of Appeals emphasized, that the Code's definition of "debt" is broadly drafted, and that the legislative history, as well as the Code's various priority and dischargeability provisions, supports a broad reading of the definition. But nothing in the legislative history of these sections compels the conclusion that Congress intended to change the state of the law with respect to criminal judgments. [Footnote 13 For the section-by-section analysis in the legislative Reports, see H.R. Rep. No. 95-595, p. 363 (1977); S. Rep. No. 95-989, p. 79 (1978). For explanations of the section by commentators, see 3 Collier on Bankruptcy § 523.17 (15th ed. 1986); 1 W. Norton, Bankruptcy Law and Practice 27.37 (1982). In fact, both of these commentators expressly state that the language does not have the intrusive effect sought by Robinson. See Collier § 523.17, at 523-123, n. 4; Norton 27.37, at 55, n. 2. It seems likely that the limitation of 523(a)(7) to fines assessed "for the benefit of a governmental unit" was intended to prevent application of that subsection to wholly private penalties such as punitive damages. See H. R. Doc. No. 93-137, pt. 2, pp. 116, 141 (1973). As for the reference to "compensation for actual pecuniary loss," the Senate Report indicates that the main purpose of this language was to prevent 523(a)(7) from being applied to tax penalties. S. Rep. No. 95-989, supra, at 79. We acknowledge that a few comments in the hearings and the Bankruptcy Laws Commission Report may suggest that the language bears the interpretation adopted by the Second Circuit. But none of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports. We decline to accord any significance to these statements. See McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493 -494 (1931); 2A N. Singer, Sutherland on Statutory Construction 48.10, pp. 319 and 321, n. 11 (4th ed. 1984). [Footnote 14 This is not the only context in which courts have been forced to evaluate the treatment of restitution orders by determining whether they are "compensatory" or "penal." Several lower courts have addressed the constitutionality of the federal Victim and Witness Protection Act, 18 U.S.C. 3579. Under that Act, defendants have no right to jury trial as to the amount of restitution, even though the Seventh Amendment would require such a trial if the issue were decided in a civil case. See Note, The Right to a Jury Trial to Determine Restitution Under the Victim and Witness Protection Act of 1982, 63 Texas L. Rev. 671 (1984). Every Federal Court of Appeals that has considered the question has concluded that criminal defendants contesting the assessment of restitution orders are not entitled to the protections of the Seventh Amendment. See id., at 672, n. 18 (citing cases). JUSTICE MARSHALL, with whom JUSTICE STEVENS joins, dissenting. Petitioners failed to assert timely objection to the discharge of respondent Robinson's restitution debt, and the [479 U.S. 36, 54] majority goes to considerable lengths to excuse this default. Respondent concedes that the restitution obligation would not have been discharged had petitioners objected in a timely fashion. Tr. of Oral Arg. 30. 1 When notified of respondent's bankruptcy proceeding, however, petitioners did nothing. They were told that they could file an objection to Robinson's discharge, but did not do so. Robinson's counsel informed the Connecticut Office of Adult Probation (Probation Office) of Robinson's discharge and of Robinson's belief that she need make no further payments, but the Probation Office did not respond. Not until almost three years after Robinson's discharge in bankruptcy did the Probation Office inform Robinson that it did not consider the debt discharged and that it intended to enforce the restitution order. The Court charitably attributes petitioners' inaction to the fact that from the start petitioners took the position they assert here. Ante, at 39. But their representations at oral argument suggest only that they failed to object because "state agencies were admittedly somewhat confused on how to handle it," Tr. of Oral Arg. 9, and were "a little perplexed because this was the first time it happened." Id., at 16. Petitioners seek a broad construction of the statute to excuse their confusion-induced waiver of the right to object and thereby guarantee that Robinson's restitution obligation would not be discharged. In my opinion, however, the statute cannot fairly be read to arrive at the result the majority reaches today. The Court concludes that a criminal restitution obligation is nondischargeable under 11 U.S.C. 523(a)(7) because it is [479 U.S. 36, 55] "a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss . . . ." Ibid. I find unconvincing the majority's conclusion that the criminal restitution order at issue here is not "compensation for actual pecuniary loss." 2 While restitution imposed as a condition of probation under the Connecticut statute is in part a penal sanction, it is also intended to compensate victims for their injuries. The statute permits a court to require a defendant, as a condition of his probation, to "make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby . . . ." Conn. Gen. Stat. 53a-30(a)(4) (1985) (emphasis added). Were the restitution order purely penal, the statute would not connect the amount of restitution to the damage imposed. Tying the amount of restitution to the amount of actual damage sustained by the victim strongly suggests that the payment is meant to compensate the victim. This comports with the theory underlying restitution sanctions. Restitution is not simply a punishment that incidentally compensates the victim. Indeed, compensation is an essential element of a restitution scheme, under which a wrong to the victim of a crime must be redressed not just by penalizing the offender but by restoring [479 U.S. 36, 56] the victim, as far as possible, to "the position that [he] would have been in if the original criminal act had never occurred." R. Barnett & J. Hagel, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in Assessing the Criminal: Restitution, Retribution, and the Legal Process 1, 27 (1977); see also id., at 25-28. That the victim has no control over whether restitution will be imposed or in what sum does not mean that the restitution is not compensation for actual pecuniary loss. 3 Nor do I accept that we can avoid the consequences of respondent's discharge in bankruptcy by finding that the restitution obligation was not a "debt." First, the scope of debts under the Code is expansive. "Debt" is defined in 11 U.S.C. 101(11) as "liability on a claim," and "claim" is defined in 101(4) as a "right to payment." The legislative history of the Code indicates that "claim" was to be given the "broadest possible definition." H. R. Rep. No. 95-595, p. 309 (1977); S. Rep. No. 95-989, p. 22 (1978); see also Ohio v. Kovacs, 469 U.S. 274, 279 (1985) ("[I]t is apparent that Congress desired a broad definition of a `claim'"). In light of the broad scope of "debt" under the Code, I agree with the [479 U.S. 36, 57] Court of Appeals that the Probation Office had a right to payment, notwithstanding "that the right is enforceable by the threat of revocation of probation and incarceration rather than by the threat of levy and execution on the debtor's property. The right is not the less cognizable because the obligor must suffer loss of freedom rather than loss of property upon failure to pay." In re Robinson, 776 F.2d 30, 38 (CA2 1985). 4 The definition of "debt" is intentionally broad not only to ensure the debtor a meaningful discharge but also to guarantee as many creditors as possible the right to participate in the distribution of the property of the estate. See H. R. Rep. No. 95-595, supra, at 180: "[U]nder the liquidation chapters of the 1898. Bankruptcy Act, certain creditors are not permitted to share in the estate because of the non-provable nature of their claims, and the debtor is not discharged from those claims. Thus, relief for the debtor is incomplete, and those creditors are not given an opportunity to collect in the case on their claims. The proposed law will permit a complete settlement of the affairs of a bankrupt debtor, [479 U.S. 36, 58] and a complete discharge and fresh start" (footnote omitted). As the Court of Appeals observed, a conclusion that the restitution obligation was not a debt "would produce the anomalous result that no holder of a right to restitution could participate in the bankruptcy proceeding or receive any distributions of the debtor's assets in liquidation. There is no evidence that Congress intended such a result." In re Robinson, 776 F.2d, at 35-36. On the contrary, Congress plainly intended that fines, penalties, and forfeitures be deemed debts eligible to participate in the distribution of the bankruptcy estate, and the statute provides explicitly for that participation. See 11 U.S.C. 726(a)(4). 5 The very fact that fines, penalties, and forfeitures are made nondischargeable under 523(a)(7) indicates that they were deemed "debts"; if they were not debts, they would not be affected by discharge, see 11 U.S.C. 524, and there would be no need to make them nondischargeable. While I am wholly in sympathy with the policy interests underlying the Court's opinion, "in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with `common sense and the public weal.' Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978). Congress might have amended the Code to achieve the result reached here had it confronted the question, but "[i]t is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." Id., at 185. I would affirm the judgment and permit Congress, if it were so inclined, to [479 U.S. 36, 59] amend the Bankruptcy Code specifically to make criminal restitution obligations nondischargeable in bankruptcy. 6 I respectfully dissent. [Footnote 1 Robinson's restitution debt would doubtless have come under 11 U.S.C. 523(a)(2) or (4), which respectively provide that a discharge in bankruptcy will not affect a debt "for obtaining money . . . by . . . false pretenses, a false representation, or actual fraud," or a debt "for fraud or defalcation . . ., embezzlement, or larceny." To prevent discharge of such debts, however, the creditor must make a timely objection and the debtor must receive notice and a hearing. See 11 U.S.C. 523(c); Bkrtcy. Rule 4007(c). [Footnote 2 Rather than argue solely that the restitution order fits precisely within the language of 523(a)(7), the Court appears to rely in part on the fact that, prior to the enactment of the Bankruptcy Code, fines and penalties were rendered nondischargeable in bankruptcy under a judicially created exception to discharge. The majority contends that "Congress enacted the Code in 1978 against the background of an established judicial exception to discharge for criminal sentences," ante, at 46, and that Congress should not be deemed to abrogate judicially created law unless it makes explicit the intent to do so. But, far from abrogating judicially created law making fines and penalties nondischargeable as a general matter, Congress has codified that law and added the requirements of 523(a)(7). The historical basis of the exception does not negate the additional limitations expressed in the statute. [Footnote 3 The other qualification in 523(a)(7), that the fine, penalty, or forfeiture must be "payable to and for the benefit of a governmental unit," is not a consideration here because the restitution order in this case meets this requirement. It does so, however, only because the victim of Robinson's larceny was a government agency. Where the victim is a private individual, it could not legitimately be said that restitution payments destined for that individual are made "for the benefit of a governmental unit." Restitution intended to repay a private victim for the damage done to him is only "for the benefit of a governmental unit" in the sense that the State, which comes within the definition of "governmental unit," see 11 U.S.C. 101(21), is benefited every time justice is served. The Court appears to take this approach, stating: "The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole." Ante, at 52. If the requirement is to be read so broadly, however, any fine, penalty, or forfeiture would be for the benefit of a governmental unit, making this qualification in 523(a)(7) superfluous. [Footnote 4 Though Connecticut does not permit the victim to enforce the restitution order as a civil judgment, other jurisdictions do. See, e. g., 18 U.S.C. 3579(h) (any order of restitution imposed by a federal court "may be enforced by the United States or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action"); Ga. Code Ann. 17-14-13(a) (1982) ("A restitution order shall be enforceable as is a civil judgment by execution"). Under such statutes, it would be even more difficult to argue that a criminal restitution order does not create a "right to payment" and is consequently not a "debt." Compare In re Pellegrino, 42 B. R. 129, 132 (Bkrtcy. Ct. Conn. 1984) ("Since a crime victim has no `right to payment,' restitution is not a `debt' under Bankruptcy Code 101(11)"), with In re Newton, 15 B. R. 708, 710 (Bkrtcy. Ct. ND Ga. 1981) (holding that, since Georgia law provided for enforcement of restitution orders by the victim, "in Georgia, an order of restitution is a debt"). [Footnote 5 The estate is distributed in payment of "claims," see 11 U.S.C. 726. The legislative history makes clear that the terms "debt" and "claim" are coextensive: a creditor has a `claim' against the debtor; the debtor owes a `debt' to the creditor." H. R. Rep. No. 95-595, p. 310 (1977). [Footnote 6 The Court's solution only postpones the problem: its holding that the restitution obligation is nondischargeable under 523(a)(7) leaves open the possibility that such obligations will be dischargeable under Chapter 13. See 11 U.S.C. 1328(a), 3 W. Norton, Bankruptcy Law and Practice 78.01 (1981); 5 Collier on Bankruptcy § 1328.011.[c] (15th ed. 1986) (broader discharge intended as incentive for debtors to complete performance under Chapter 13 plans); but see In re Newton, supra, at 710 (holding restitution order nondischargeable under 1328). The Court's opinion therefore does not lay to rest the difficulties the courts will have in coordinating the Bankruptcy Code with state criminal restitution statutes. [479 U.S. 36, 60]

conservative

other

economic_activity

1970-127-01

United States Supreme Court UNITED STATES v. MITCHELL(1971) No. 798 Argued: April 20, 1971Decided: June 7, 1971 A married woman domiciled in Louisiana, where under state law the wife has a present vested interest in community property equal to that of her husband, is personally liable for federal income taxes on her one-half interest in community income realized during the existence of the community, notwithstanding her subsequent renunciation under state law of her community rights, since federal, not state, law governs what is exempt from federal taxation. Pp. 194-206. 430 F.2d 1 and 7, reversed. BLACKMUN, J., delivered the opinion for a unanimous Court. William Terry Bray argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Matthew J. Zinn, and Crombie J. D. Garrett. Paul K. Kirkpatrick, Jr., argued the cause and filed a brief for respondent Mitchell. Patrick M. Schott argued the cause and filed a brief for respondent Angello. MR. JUSTICE BLACKMUN delivered the opinion of the Court. The petition here, arising from two cases below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community despite the exercise of her statutory right of exoneration. The issue arises in the context, in one case, of a divorce, and, in the other, of the husband's death. [403 U.S. 190, 191] I Mrs. Mitchell and Mrs. Sims. The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under 6651 (a) (failure to file return), 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U.S.C. 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under 6901 as Mrs. Mitchell's transferee without consideration. Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code, 1 she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of "debts contracted during the marriage." [403 U.S. 190, 192] Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income. Mrs. Mitchell had little knowledge of her husband's finances. She rarely knew the balance in the family bank account. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple's financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959. The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims. Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T. C. 641 (1969). On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell [403 U.S. 190, 193] v. Commissioner, 430 F.2d 1 (CA5 1970). 2 Judge Simpson dissented on the basis of Judge Forrester's opinion in the Tax Court. 430 F.2d, at 7. Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income was realized by the Sparacios during those years, but neither the husband nor the wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio's life. The insured died in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community's income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case. Each side then moved for summary judgment. Judge Christenberry granted the Government's motion and denied Mrs. Angello's. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel's decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F.2d 7 (CA5 1970). Judge Simpson again dissented. [403 U.S. 190, 194] We granted certiorari in both cases, 400 U.S. 1008 (1971), on a single petition filed under our Rule 23 (5). II Sections 1 and 3 of the 1954 Code, 26 U.S.C. 1 and 3, as have all of their predecessors since the Revenue Act of 1917, 3 impose a tax on the taxable income "of every individual." The statutes, however, have not specified what that phrase includes. Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said: "These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual's income. The use of the word `of' denotes ownership. It would be a strained construction, which, in the absence of further definition [403 U.S. 190, 195] by Congress, should impute a broader significance to the phrase." Poe v. Seaborn, 282 U.S. 101, 109 (1930). The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has "a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both." Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U.S. 315 (1926), the opposite result had been reached under the then California law. But: "In the Robbins case, we found that the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that he was in fact the owner." 282 U.S., at 116 . In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U.S. 118 (1930); Hopkins v. Bacon, 282 U.S. 122 (1930); Bender v. Pfaff, 282 U.S. 127 (1930). In the Louisiana case it was said: "If the test be, as we have held it is, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife's ownership of one-half of that income." 282 U.S., at 131 . The Court then reviewed the relevant Louisiana statutes and the power of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon [403 U.S. 190, 196] the wrongful exercise of his power over community property are more stringent than in many other States. It concluded: "Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each `of' them as an `individual' as those words are used in 210 (a) and 211 (a) of the Revenue Act of 1926." 282 U.S., at 132 . Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U.S. 792 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question: "Has the wife under 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?" 282 U.S., at 794 . This affirmative answer to a question phrased in terms of "should," not "may," clearly indicates that the wife had the obligation, not merely the right, to report half the community income. The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F.2d 942 (1961), rev'd on other grounds, 372 U.S. 39 (1963); Van Antwerp v. United States, 92 F.2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 [403 U.S. 190, 197] (ND Cal. 1961); Dillin v. Commissioner, 56 T. C. 228 (1971); Kimes v. Commissioner, 55 T. C. 774 (1971); Hill v. Commissioner, 32 T. C. 254 (1959); Hunt v. Commissioner, 22 T. C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff'd, 125 F.2d 366 (CA9 1942). There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F.2d 49, 50 (1943); Saenger v. Commissioner, 69 F.2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson's Estate v. Commissioner, 155 F.2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F.2d 667, 669 (CA5 1959). Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, 300 U.S. 5, 11 -14 (1937). See Hoeper v. Tax Comm'n, 284 U.S. 206 (1931). In the determination of ownership, state law controls. "The state law creates legal interests but the federal statute determines when and how they shall be taxed." Burnet v. Harmel, 287 U.S. 103, 110 (1932); Morgan v. Commissioner, 309 U.S. 78, 80 -81 (1940); Helvering v. Stuart, 317 U.S. 154, 162 (1942); Commissioner v. Harmon, 323 U.S. 44, 50 -51 (1944) (DOUGLAS, J., dissenting); see Commissioner v. Estate of Bosch, 387 U.S. 456 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation. III This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife's interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order. [403 U.S. 190, 198] Every marriage contracted in Louisiana "superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary." La. Civ. Code Ann., Art. 2399 (1971). "This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. . . ." Art. 2402. The debts contracted during the marriage "enter into the partnership or community of gains, and must be acquitted out of the common fund . . . ." Art. 2403. "The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife." Also "he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons." Art. 2404. The same article, however, denies him the power of conveyance, "by a gratuitous title," of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage "all effects which both husband and wife reciprocally possess, are presumed common effects or gains . . . ." Art. 2405. At dissolution, "The effects which compose the partnership or community of gains, are divided into two equal portions [403 U.S. 190, 199] between the husband and the wife, or between their heirs . . . ." Art. 2406. "It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution." Art. 2409. Then the wife and her heirs or assigns may "exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains." Art. 2410. And the wife "who renounces, loses every sort of right to the effects of the partnership or community of gains" except that "she takes back all her effects, whether dotal or extradotal." Art. 2411. The Louisiana court has described and forcefully stated the nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said: "The wife's half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it be acquired in the name of only one of them. . . . There are loose expressions, appearing in some of the opinions rendered by this court, to the effect that the wife's half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved and liquidated. But that is contrary to the provisions of the Civil Code . . . and is contrary to the rule announced in every decision of this court since the error was first committed . . . ." [403 U.S. 190, 200] Later, in Succession of Wiener, 203 La. 649, 14 So.2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said: "That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state . . . ." "The conclusion we have reached in this case is in keeping with the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. . . ." 203 La., at 657 and 662, 14 So.2d, at 477 and 479. After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed: "In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. . . . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. . . . "It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its [403 U.S. 190, 201] codifiers saw fit, in their wisdom, to place the husband at the head of the partnership, but this did not in any way affect the status of the property or the wife's ownership of her half thereof. . . . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act." 203 La., at 665-667, 14 So.2d, at 480-481. The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded: "It is obvious, therefore, that the wife's interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract." 203 La., at 669, 14 So.2d, at 481-482. The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife. These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So.2d 328, 330 [403 U.S. 190, 202] (1968); Gebbia v. City of New Orleans, 249 La. 409, 415-416, 187 So.2d 423, 425 (1966); Azar v. Azar, 239 La. 941, 946, 120 So.2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So.2d 169, 173 (1956); Dixon v. Dixon's Executors, 4 La. 188 (1932). This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, 326 U.S. 340 (1945). There the inclusion in the decedent's gross estate of the entire community property was upheld for purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death: "As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife's share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never `owned,' and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax. "Similarly, with the death of the wife, her title or ownership in her share of the community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband's share from the restrictions which the existence of the community had placed upon his control of it. . . . [403 U.S. 190, 203] "This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense `vested' from the moment the community began. . . ." 326 U.S., at 355 -356. Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents. IV Despite all this, despite the concession that the wife's interest in the community property is not a mere expectancy, 4 and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income, 5 respondents take the position that somehow the wife's interest is insufficient to make her liable for federal income tax computed on that half of the community income. It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that owns the property; and that Seaborn and its companion cases were concerned only with the right to split income, not with the obligation so to do. It is also said that the wife's dominion over the community property is nonexistent in Louisiana; that the husband administers the community's affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only [403 U.S. 190, 204] by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U.S., at 103 -105, and in its companion cases, 282 U.S., at 119 , 123, and 128, and were unavailing there, 282 U.S., at 111 -113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T. C., at 646, Mrs. Mitchell's renunciation "came long after her liabilities for the annual income taxes here in issue had attached." Further, "[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. . . ." 1 W. deFuniak, Principles of Community Property 218, p. 621 (1943). The results urged by the respondents might follow, of course, in connection with a tax or other obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy. Section 6321 of the 1954 Code imposes a lien for the income tax "upon all property and rights to property . . . belonging to" the person liable for the tax. Section 6331 (a) authorizes levy "upon all property and rights to property . . . belonging to such person . . . ." What is exempt from levy is specified in 6334 (a). Section [403 U.S. 190, 205] 6334 (c) provides, "Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state law. United States v. Bess, 357 U.S. 51, 56 -57 (1958); Shambaugh v. Scofield, 132 F.2d 345 (CA5 1942); United States v. Heffron, 158 F.2d 657 (CA9), cert. denied, 331 U.S. 831 (1947); Treas. Reg. 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P.2d 417 (1965). As a consequence, state law which exempts a husband's interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F.2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F.2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different. It must be conceded that these cases are "hard" cases and exceedingly unfortunate for the two women taxpayers. 6 Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband's life insurance policy. This takes place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The "fault," if fault there be, lies with the four taxpayers and flows from the settled principles of the community property [403 U.S. 190, 206] system. If the wives were to prevail here, they would have the best of both worlds. The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of 6013 and the final sentence of 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents' situation. The judgment in each case is reversed. It is so ordered. Footnotes [Footnote 1 Art. 2410. "Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains." [Footnote 2 Accord, with respect to Texas law, Ramos v. Commissioner, 429 F.2d 487 (CA5 1970). [Footnote 3 Internal Revenue Code of 1939, 11 and 12; Revenue Act of 1938, 11 and 12, 52 Stat. 452, 453; Revenue Act of 1936, 11 and 12, 49 Stat. 1653; Revenue Act of 1934, 11 and 12, 48 Stat. 684; Revenue Act of 1932, 11 and 12, 47 Stat. 174; Revenue Act of 1928, 11 and 12, 45 Stat. 795, 796; Revenue Act of 1926, 210 and 211, 44 Stat. 21; Revenue Act of 1924, 210 and 211, 43 Stat. 264, 265; Act of March 4, 1923, 42 Stat. 1507; Revenue Act of 1921, 210 and 211, 42 Stat. 233; Revenue Act of 1918, 210 and 211, 40 Stat. 1062; Revenue Act of 1917, 1 and 201, 40 Stat. 300, 303. [Footnote 4 Angello Brief 2. [Footnote 5 Angello Brief 2, 9. [Footnote 6 Of course, as Baron Rolfe long ago observed, hard cases "are apt to introduce bad law." Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng. Rep. 402, 406 (1842). [403 U.S. 190, 207]

liberal

person

federal_taxation

1976-062-01

United States Supreme Court NOLDE BROS., INC. v. BAKERY WORKERS(1977) No. 75-1198 Argued: November 9, 1976Decided: March 7, 1977 Petitioner corporation entered into a collective-bargaining agreement with respondent Union which contained a provision for severance pay on termination of the employment of certain employees. The agreement, which specified that any grievance arising between the parties was subject to binding arbitration, was to remain in effect until its expiration date and thereafter until execution of a new agreement or the existing agreement was terminated by either party upon seven days' written notice. While contract changes were being negotiated after the contract's expiration date, respondent on August 20, 1973, gave notice of cancellation, and the contract terminated August 27. Negotiations nevertheless continued but ended on August 31, when petitioner, threatened with a strike, informed respondent that it was closing its plant effective that day. Plant operations ceased shortly thereafter. Petitioner paid accrued wages, but rejected respondent's demand for severance pay under the collective-bargaining agreement and declined to arbitrate the claim therefor on the ground that its obligation to do so terminated with the collective-bargaining agreement. Respondent then brought this action in District Court to compel petitioner, inter alia, to arbitrate the severance-pay issue. The District Court granted petitioner's motion for summary judgment, holding that the employees' right to severance pay expired with respondent's voluntary termination of the agreement; that consequently there was no longer a severance-pay issue to arbitrate; and that, in any event, the duty to arbitrate ended with the contract. The Court of Appeals reversed, concluding that the parties' arbitration duties under the contract survived its termination with respect to claims arising by reason of the agreement. Held: Respondent's claim for severance pay under the expired contract is subject to resolution under the contract's arbitration terms. Pp. 248-255. (a) The obligations of parties under the arbitration clause of a collective-bargaining agreement may survive contract termination when the dispute is over an obligation arguably created by the expired agreement. John Wiley & Sons v. Livingston, 376 U.S. 543 . Pp. 250-252. (b) The parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery established by the agreement. [430 U.S. 243, 244] There is nothing in the arbitration clause that expressly excluded from its operation a dispute arising under the contract but based on events occurring after its termination. Absent some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration obligations to end automatically with the contract. Pp. 252-253. (c) The parties clearly expressed their preference for an arbitral, rather than a judicial, interpretation of their obligations and drafted their broad arbitration clause against a backdrop of a well-established federal labor policy favoring arbitration as a means of resolving disputes. There is a strong presumption favoring arbitrability. Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 -583. Pp. 253-255. (d) Where the dispute is over a provision of the expired collective-bargaining agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication. P. 255. 530 F.2d 548, affirmed. BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 255. Allan L. Bioff argued the cause for petitioner. With him on the brief was Leonard Singer. Ronald Rosenberg argued the cause for respondent. With him on the brief were Henry Kaiser, Eugene Gressman, George B. Driesen, Jerry Anker, and Gerhard P. Van Arkel. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This case raises the question of whether a party to a collective-bargaining contract may be required to arbitrate a contractual dispute over severance pay pursuant to the arbitration clause of that agreement even though the dispute, although governed by the contract, arises after its termination. Only the issue of arbitrability is before us. (1) In 1970, petitioner Nolde Brothers, Inc., entered into a collective-bargaining agreement with respondent Local No. [430 U.S. 243, 245] 358, of the Bakery & Confectionery Workers Union, AFL-CIO, covering petitioner's Norfolk, Va., bakery employees. Under the contract, "any grievance" arising between the parties was subject to binding arbitration. 1 In addition, the contract contained a provision which provided for severance pay on termination of employment for all employees having three or more years of active service. 2 Vacation rights were [430 U.S. 243, 246] also granted employees by the agreement; 3 like severance pay, these rights were geared to an employee's length of service and the amount of his earnings. By its terms, the contract was to remain in effect until July 21, 1973, and thereafter, until such time as either a new agreement was executed between the parties, or the existing agreement was terminated upon seven days' written notice by either party. [430 U.S. 243, 247] In May 1973, the parties resumed bargaining after the Union advised Nolde, pursuant to 8 (d) of the National Labor Relations Act, 29 U.S.C. 158 (d) (1970 ed., and Supp. V), of its desire to negotiate certain changes in the existing agreement. These negotiations continued without resolution up to, and beyond, the July 21 contract expiration date. On August 20, the Union served the requisite seven days' written notice of its decision to cancel the existing contract. The Union's termination of the contract became effective August 27, 1973. Despite the contract's cancellation, negotiations continued. They ended, however, on August 31, when Nolde, faced by a threatened strike after the Union had rejected its latest proposal, informed the Union of its decision to close permanently its Norfolk bakery, effective that day. Operations at the plant ceased shortly after midnight on August 31. Nolde then paid employees their accrued wages and accrued vacation pay under the canceled contract; in addition, wages were paid for work performed during the interim between the contract's termination on August 27 and the bakery's closing four days later. However, the company rejected the Union's demand for the severance pay called for in the collective-bargaining agreement. It also declined to arbitrate the severance-pay claim on the ground that its contractual obligation to arbitrate disputes terminated with the collective-bargaining agreement. The Union then instituted this action in the District Court under 301 of the Labor Management Relations Act, 29 U.S.C. 185, seeking to compel Nolde to arbitrate the severance-pay issue, or in the alternative, judgment for the severance pay due. The District Court granted Nolde's motion for summary judgment on both issues. It held that the employees' right to severance pay expired with the Union's voluntary termination of the collective-bargaining contract and that, as a result, there was no longer any severance-pay [430 U.S. 243, 248] issue to arbitrate. It went on to note that even if the dispute had been otherwise arbitrable, the duty to arbitrate terminated with the contract that had created it. 382 F. Supp. 1354 (ED Va. 1974). On appeal, the United States Court of Appeals for the Fourth Circuit reversed. 530 F.2d 548 (1975). It took the position that the District Court had approached the case from the wrong direction by determining that Nolde's severance-pay obligations had expired with the collective-bargaining agreement before determining whether Nolde's duty to arbitrate the claim survived the contract's termination. Turning to that latter question first, the Court of Appeals concluded that the parties' arbitration duties under the contract survived its termination with respect to claims arising by reason of the collective-bargaining agreement. Having thus determined that the severance-pay issue was one for the arbitrator, the Court of Appeals expressed no views on the merits of the dispute. We granted certiorari to review its determination that the severance-pay claim was arbitrable. 425 U.S. 970 (1976). (2) In arguing that Nolde's displaced employees were entitled to severance pay upon the closing of the Norfolk bakery, the Union maintained that the severance wages provided for in the collective-bargaining agreement were in the nature of "accrued" or "vested" rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment. In support of this claim, the Union noted that the severance-pay clause is found in the contract under an article entitled "Wages." The inclusion within that provision, it urged, was evidence that the parties considered severance pay as part of the employees' compensation for services performed during the life of the agreement. 4 In addition, the Union [430 U.S. 243, 249] pointed out that the severance-pay clause itself contained nothing to suggest that the employees' right to severance pay expired if the events triggering payment failed to occur during the life of the contract. Nolde, on the other hand, argued that since severance pay was a creation of the collective-bargaining agreement, its substantive obligation to provide such benefits terminated with the Union's unilateral cancellation of the contract. As the parties' arguments demonstrate, both the Union's claim for severance pay and Nolde's refusal to pay the same are based on their differing perceptions of a provision of the expired collective-bargaining agreement. The parties may have intended, as Nolde maintained, that any substantive claim to severance pay must surface, if at all, during the contract's term. However, there is also "no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired." John Wiley & Sons v. Livingston, 376 U.S. 543, 555 (1964). 5 Of course, in determining the arbitrability of the dispute, the merits of the underlying claim for severance pay are not before us. However, it is clear that, whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract. There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement [430 U.S. 243, 250] would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit "all grievances" to arbitration, our determination that the Union was "making a claim which on its face is governed by the contract" would end the matter had the contract not been terminated prior to the closing of the plant. Steelworkers v. American Mfg. Co., 363 U.S. 564, 568 (1960). Here, however, Nolde maintains that a different rule must prevail because the event giving rise to the contractual dispute, i. e., the employees' severance upon the bakery's closing, did not occur until after the expiration of the collective-bargaining agreement. (3) Nolde contends that the duty to arbitrate, being strictly a creature of contract, must necessarily expire with the collective-bargaining contract that brought it into existence. Hence, it maintains that a court may not compel a party to submit any post-contract grievance to arbitration for the simple reason that no contractual duty to arbitrate survives the agreement's termination. Any other conclusion, Nolde argues, runs contrary to federal labor policy which prohibits the imposition of compulsory arbitration upon parties except when they are bound by an arbitration agreement. In so arguing, Nolde relies on numerous decisions of this Court which it claims establish that "arbitration is a matter of contract and [that] a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960); e. g., Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374 (1974); John Wiley & Sons v. Livingston, supra, at 547; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 (1962). Our prior decisions have indeed held that the arbitration duty is a creature of the collective-bargaining agreement and that a party cannot be compelled to arbitrate any matter in [430 U.S. 243, 251] the absence of a contractual obligation to do so. Adherence to these principles, however, does not require us to hold that termination of a collective-bargaining agreement automatically extinguishes a party's duty to arbitrate grievances arising under the contract. Carried to its logical conclusion that argument would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract's term. Yet it could not seriously be contended in either instance that the expiration of the contract would terminate the parties' contractual obligation to resolve such a dispute in an arbitral, rather than a judicial forum. See John Wiley & Sons, supra; Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960); Machine Workers v. Oxco Brush Div., 517 F.2d 239, 242-243 (CA6 1975); Procter & Gamble Ind. Union v. Procter & Gamble Mfg. Co., 312 F.2d 181, 186 (CA2 1962), cert. denied, 374 U.S. 830 (1963). Nolde concedes as much by limiting its claim of nonarbitrability to those disputes which clearly arise after the contract's expiration. Brief for Petitioner 22. Our holding in John Wiley & Sons is instructive on this matter. There we held that a dispute over employees' rights to severance pay 6 under an expired collective-bargaining agreement was arbitrable even though there was no longer any contract between the parties. In their expired agreement, the parties had agreed to submit to arbitration: "`any differences, grievance or dispute between the Employer and the Union arising out of or relating to this agreement, or its interpretation or application or enforcement.'" 376 U.S., at 553 . [430 U.S. 243, 252] The Court had little difficulty interpreting that language to require the arbitration of the Union's post-termination severance-pay claim since that claim was "based solely on the Union's construction of the . . . agreement in such a way that . . . [the Employer] would have been required to discharge certain obligations notwithstanding the expiration of the agreement." Id., at 555. We thus determined that the parties' obligations under their arbitration clause survived contract termination when the dispute was over an obligation arguably created by the expired agreement. It is true that the Union there first sought to arbitrate the question of post-contract severance pay while the agreement under which it claimed such benefits was still in effect. But that factor was not dispositive in our determination of arbitrability. Indeed, that very distinction was implicitly rejected shortly thereafter in Piano Workers v. W. W. Kimball Co., 379 U.S. 357 (1964), rev'g 333 F.2d 761 (CA7), on the basis of John Wiley & Sons, supra, and Steelworkers v. American Mfg. Co., supra. 7 We decline to depart from that course in the instant case, for, on the record before us, the fact that the Union asserted its claim to severance pay shortly after, rather than before, contract termination does not control the arbitrability of that claim. The parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery established by their collective-bargaining agreement. The severance-pay dispute, as we have noted, would have been subject to resolution under those procedures had it arisen during the contract's term. However, even though the parties could have so provided, [430 U.S. 243, 253] there is nothing in the arbitration clause that expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. The contract's silence, of course, does not establish the parties' intent to resolve post-termination grievances by arbitration. But in the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract. Any other holding would permit the employer to cut off all arbitration of severance-pay claims by terminating an existing contract simultaneously with closing business operations. By their contract the parties clearly expressed their preference for an arbitral, rather than a judicial, interpretation of their obligations under the collective-bargaining agreement. Their reasons for doing so, as well as the special role of arbitration in the employer-employee relationship, have long been recognized by this Court: "The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. . . . The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed." Warrior & Gulf Nav. Co., 363 U.S., at 582 . Indeed, it is because of his special experience, expertise, and selection by the parties that courts generally defer to an arbitrator's interpretation of the collective-bargaining agreement: "[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction [430 U.S. 243, 254] of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." Enterprise Wheel & Car Corp., 363 U.S., at 599 . While the termination of the collective-bargaining agreement works an obvious change in the relationship between employer and union, it would have little impact on many of the considerations behind their decision to resolve their contractual differences through arbitration. The contracting parties' confidence in the arbitration process and an arbitrator's presumed special competence in matters concerning bargaining agreements does not terminate with the contract. Nor would their interest in obtaining a prompt and inexpensive resolution of their disputes by an expert tribunal. Hence, there is little reason to construe this contract to mean that the parties intended their contractual duty to submit grievances and claims arising under the contract to terminate immediately on the termination of the contract; the alternative remedy of a lawsuit is the very remedy the arbitration clause was designed to avoid. It is also noteworthy that the parties drafted their broad arbitration clause against a backdrop of well-established federal labor policy favoring arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements. Congress has expressly stated: "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U.S.C. 173 (d). In order to effectuate this policy, this Court has established a strong presumption favoring arbitrability: "[T]o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery [430 U.S. 243, 255] of arbitration. . . . [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Warrior & Gulf Nav. Co., supra, at 582-583. The parties must be deemed to have been conscious of this policy when they agree to resolve their contractual differences through arbitration. Consequently, the parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship. In short, where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication. We therefore agree with the conclusion of the Court of Appeals that, on this record, the Union's claim for severance pay under the expired collective-bargaining agreement is subject to resolution under the arbitration provisions of that contract. 8 Affirmed. Footnotes [Footnote 1 ARTICLE XII GRIEVANCES AND ARBITRATION "Section 1. All grievances shall be first taken up between the Plant Management and the Shop Steward. If these parties shall be unable to settle the grievance, then the Business Agent of the Union shall be called in, in an attempt to arrive at a settlement of the grievance. If these parties are unable to settle the grievance, the dispute will be settled as called for in Sections 2 and 3 of this Article. "Section 2. In the event that any grievance cannot be satisfactorily adjusted by the procedure outlined above, either of the parties hereto may demand arbitration and shall give written notice to the other party of its desire to arbitrate. No individual employee shall have the right to invoke arbitration without the written consent of the Union. The Arbitration Board shall consist of three (3) persons, one selected by the Company and one selected by the Union. The two persons selected shall agree upon a third person who shall act as Chairman of the Arbitration Board. "Section 3. The decision or award of the Arbitration Board, or a majority thereof, shall be final and binding on both parties. If the third party to arbitration is not selected in ten (10) days from receipt of notice, the Director of the U.S. Conciliation Service shall be requested to make the appointment. The expense of the neutral arbitrator shall be borne equally by the parties. "Section 4. Pending negotiations or during arbitration there shall be no strikes, lock-outs, boycotts, or any stoppages of work." [Footnote 2 ARTICLE IX WAGES . . . . . "Section 5. Each full-time employee who is permanently displaced from his employment with the Company by reason of the introduction of labor saving equipment, the closing of a department, the closing of an entire plant, or by lay off, shall be compensated for such displacement [430 U.S. 243, 246] providing he has been actively employed by the Company for a period of at least three (3) years. An eligible employee's compensation for his displacement shall be on the basis of thirty (30) hours of severance pay, at his straight time hourly rate, for each full year or major portion of a year of active employment commencing with the fourth (4th) year following his most recent date of hire. Payment under this formula shall be limited to a maximum of nine hundred (900) hours of severance pay. "Section 6. No severance pay will be paid to an eligible employee if he: "(a) accepts employment in another plant of the Company; or "(b) is voluntarily or involuntarily separated from his employment prior to the date he would otherwise be displaced for one of the reasons stated in Section 5 above." [Footnote 3 ARTICLE IV VACATIONS "Section 1. Each full time employee is entitled to one week's vacation after one year's service, two (2) weeks' vacation after two (2) years' service, three (3) weeks' vacation after nine (9) years' service, and four (4) weeks' vacation after eighteen (18) years' service. . . . . . . . . "Effective January 1, 1972, the service requirement for the fourth (4th) week of vacation shall be reduced to seventeen (17) years. "Effective January 1, 1972, each employee with twenty-five (25) or more years of service shall be entitled to a vacation benefit of five (5) weeks. "Section 2. The anniversary date of employment shall be adjusted by periods of lay-offs or leaves of absence for the purpose of computation of vacation benefits only. "Section 3. Vacation pay shall be based on straight time at the employee's regular hourly rate for the average number of hours worked by the employee in the thirteen (13) weeks preceding the vacation period, not including holiday weeks or weeks in which time is lost on account of sickness, with a minimum of forty (40) hours' pay and a maximum of forty-eight (48) hours' pay for each week of the vacation allowance." [Footnote 4 The fact that the amount of severance pay to which an employee is [430 U.S. 243, 249] entitled under the collective-bargaining agreement varies according to the length of his employment and the amount of his salary also supports the Union's position that severance pay was nothing more than deferred compensation. [Footnote 5 The parties apparently viewed the vacation rights provided by Art. IV of the contract as vested in nature since after the bakery's closing, Nolde, upon the Union's request, paid its former employees all vacation pay which had accrued under the collective-bargaining agreement. [Footnote 6 The parties also disagreed over such matters as seniority rights, welfare security benefits, discharges and layoffs, and vacations. 376 U.S., at 554 n. 7. [Footnote 7 In W. W. Kimball Co., the Seventh Circuit found that a dispute over seniority rights under an expired collective-bargaining agreement was nonarbitrable. There the dispute did not arise, nor were arbitration proceedings or an action to compel the same instituted, during the life of the agreement. 333 F.2d, at 762-763. [Footnote 8 Certiorari was neither sought, nor granted, on the question of the arbitrator's authority to consider arbitrability following referral, and we express no view on that matter. Similarly, we need not speculate as to the arbitrability of post-termination contractual claims which, unlike the one presently before us, are not asserted within a reasonable time after the contract's expiration. MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, dissenting. When a dispute arises between two parties, that dispute is to be settled by the process of arbitration only if there is an [430 U.S. 243, 256] agreement between the parties that the dispute will be settled by that means. Yet the Court today says that a union-employer dispute must be settled by arbitration even though the dispute did not even arise until after the contract containing an agreement to arbitrate had been terminated by action of the Union, and the employer had closed its business. I think this conclusion is neither required by existing precedent nor based upon any realistic appraisal of the contracting parties' intent. Our cases, to be sure, have established the importance of arbitration in resolving disputes arising under collective-bargaining agreements and in thereby maintaining peaceful labor relations. A collective-bargaining agreement erects a system of industrial self-government; grievance and arbitration provisions in such an agreement make that collective-bargaining process continuous: "Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties." Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581 . But the duty to arbitrate can arise only upon the parties' agreement to resolve their contractual differences in the arbitral forum. And the presumptive continuation of that duty even after the formal expiration of such an agreement can be justified only in terms of a web of assumptions about the continuing nature of the labor-management relationship and the importance of having available a method harmoniously to resolve differences arising in that relationship. See generally id., at 578. Those assumptions are wholly inapplicable to this case. The closing of the bakery by the employer-petitioner necessarily meant that there was no continuing relationship to protect or preserve. Cf. John Wiley & Sons v. Livingston, 376 U.S. 543 ; Howard Johnson Co. v. Hotel Employees, [430 U.S. 243, 257] 417 U.S. 249 . And the Union's termination of the contract, thereby releasing it from its obligation not to strike, foreclosed any reason for implying a continuing duty on the part of the employer to arbitrate as a quid pro quo for the Union's offsetting, enforceable duty to negotiate rather than strike. See Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 . Although for these reasons no continuing duty to arbitrate can be presumed in this case in the interest of maintaining industrial peace, it might nevertheless rationally be argued that the arbitration agreement was a term or condition of employment that the employer could not unilaterally change without first bargaining to impasse. See 29 U.S.C. 158 (a) (5). The trouble with that argument is that the National Labor Relations Board has rejected the notion that arbitration is a term or condition of employment that by operation of statute continues even after the contract embodying it has terminated. The Board, instead, has viewed arbitration as an obligation that arises solely out of contract, and is favored but not statutorily required as a dispute-resolving mechanism. See Hilton-Davis Chemical Co., 185 N. L. R. B. 241 (1970). See also Gateway Coal Co. v. Mine Workers, 414 U.S. 368 . It is clear, therefore, that neither federal labor law nor the interest of maintaining industrial peace can serve to explain the Court's conclusion that the presumption of arbitrability extends to the facts of this case. I realize that our decisions have broadly held that doubts as to arbitrability under an arbitration clause are to be resolved in favor of arbitrability. See Warrior & Gulf Nav. Co., supra. But those cases involved arbitration clauses that were undoubtedly in force at the time the dispute first arose, and arbitration was invoked to resolve issues arising during the continuing course of the employer-employee relationship. (See, e. g., Piano Workers v. W. W. Kimball Co., 379 U.S. 357 , where a dispute over the rights of employees to preferential hiring at a new plant commenced before the contract at [430 U.S. 243, 258] the old plant had expired.) The question here, by contrast, is whether the presumption of arbitrability survived even when the contract providing for arbitration had terminated and the rights in dispute, though claimed to arise under the contract, ripened only after the contract had expired and the employment relationship had terminated. For the reasons I have expressed, I think there was no agreement to arbitrate this dispute. The Union had, of course, a clear cause of action under 301 of the Labor Management Relations Act to seek judicial redress against the employer for its failure to meet its severance-pay obligations to the employees. The Union did, in fact, bring just such a lawsuit in this case. If the Court of Appeals had addressed the merits of the litigation, as I believe it should have done, this controversy would have been settled long ago. I respectfully dissent from the opinion and judgment of the Court. [430 U.S. 243, 259]

conservative

organization

unions

1986-010-01

United States Supreme Court CARGILL, INC. v. MONFORT OF COLORADO, INC.(1986) No. 85-473 Argued: October 6, 1986Decided: December 9, 1986 Section 16 of the Clayton Act entitles a private party to sue for injunctive relief against "threatened loss or damage by a violation of the antitrust laws." Respondent, the country's fifth-largest beef packer, brought an action in Federal District Court under 16 to enjoin the proposed merger of petitioner Excel Corporation, the second-largest packer, and Spencer Beef, the third-largest packer. Respondent alleged that it was threatened with a loss of profits by the possibility that Excel, after the merger, would lower its prices to a level at or above its costs in an attempt to increase its market share. During trial, Excel moved for dismissal on the ground that respondent had failed to allege or show that it would suffer antitrust injury, but the District Court denied the motion. After trial, the District Court held that respondent's allegation of a "price-cost squeeze" that would severely narrow its profit margins constituted an allegation of antitrust injury. The Court of Appeals affirmed, holding that respondent's allegation of a "price-cost squeeze" was not simply one of injury from competition but was a claim of injury by a form of predatory pricing in which Excel would drive other companies out of the market. Held: 1. A private plaintiff seeking injunctive relief under 16 must show a threat of injury "of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 . Pp. 109-113. 2. The proposed merger does not constitute a threat of antitrust injury. A showing, as in this case, of loss or damage due merely to increased competition does not constitute such injury. And while predatory pricing is capable of inflicting antitrust injury, here respondent neither raised nor proved any claim of predatory pricing before the District Court, and thus the Court of Appeals erred in interpreting respondent's allegations as equivalent to allegations of injury from predatory conduct. Pp. 113-119. 3. This Court, however, will not adopt in effect a per se rule denying competitors standing to challenge acquisitions on the basis of [479 U.S. 104, 105] predatory-pricing theories. Nothing in the Clayton Act's language or legislative history suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing. Pp. 120-122. 761 F.2d 570, reversed and remanded. BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and MARSHALL, POWELL, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 122. BLACKMUN, J., took no part in the consideration or decision of the case. Ronald G. Carr argued the cause for petitioners. With him on the briefs were Robert F. Hanley, Alan K. Palmer, and Phillip Areeda. Deputy Solicitor General Cohen argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Ginsburg, Deputy Assistant Attorney General Cannon, Jerrold J. Ganzfried, Catherine G. O'Sullivan, Andrea Limmer, and Marcy J. K. Tiffany. William C. McClearn argued the cause for respondent. With him on the brief were James E. Hartley, Elizabeth A. Phelan, and Marcy G. Glenn. * [Footnote * Thomas B. Leary filed a brief for the Business Roundtable as amicus curiae urging reversal. David L. Foster and Kim Sperduto filed a brief for Royal Crown Cola Co. as amicus curiae. JUSTICE BRENNAN delivered the opinion of the Court. Under 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U.S.C. 26, private parties "threatened [with] loss or damage by a violation of the antitrust laws" may seek injunctive relief. This case presents two questions: whether a plaintiff seeking relief under 16 must prove a threat of antitrust injury, and, if so, whether loss or damage due to increased competition constitutes such injury. [479 U.S. 104, 106] I Respondent Monfort of Colorado, Inc. (Monfort), the plaintiff below, owns and operates three integrated beef-packing plants, that is, plants for both the slaughter of cattle and the fabrication of beef. 1 Monfort operates in both the market for fed cattle (the input market) and the market for fabricated beef (the output market). These markets are highly competitive, and the profit margins of the major beef packers are low. The current markets are a product of two decades of intense competition, during which time packers with modern integrated plants have gradually displaced packers with separate slaughter and fabrication plants. Monfort is the country's fifth-largest beef packer. Petitioner Excel Corporation (Excel), one of the two defendants below, is the second-largest packer. Excel operates five integrated plants and one fabrication plant. It is a wholly owned subsidiary of Cargill, Inc., the other defendant below, a large privately owned corporation with more than 150 subsidiaries in at least 35 countries. On June 17, 1983, Excel signed an agreement to acquire the third-largest packer in the market, Spencer Beef, a division of the Land O'Lakes agricultural cooperative. Spencer Beef owned two integrated plants and one slaughtering plant. After the acquisition, Excel would still be the second-largest packer, but would command a market share almost equal to that of the largest packer, IBP, Inc. (IBP). 2 [479 U.S. 104, 107] Monfort brought an action under 16 of the Clayton Act, 15 U.S.C. 26, to enjoin the prospective merger. 3 Its complaint alleged that the acquisition would "violat[e] Section 7 of the Clayton Act because the effect of the proposed acquisition may be substantially to lessen competition or tend to create a monopoly in several different ways . . . ." 1 App. 19. Monfort described the injury that it allegedly would suffer in this way: "(f) Impairment of plaintiff's ability to compete. The proposed acquisition will result in a concentration of economic power in the relevant markets which threatens Monfort's supply of fed cattle and its ability to compete in the boxed beef market." Id., at 20. Upon agreement of the parties, the District Court consolidated the motion for a preliminary injunction with a full trial [479 U.S. 104, 108] on the merits. On the second day of trial, Excel moved for involuntary dismissal on the ground, inter alia, that Monfort had failed to allege or show that it would suffer antitrust injury as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977). The District Court denied the motion. After the trial, the court entered a memorandum opinion and order enjoining the proposed merger. The court held that Monfort's allegation of "price-cost `squeeze'" that would "severely narro[w]" Monfort's profit margins constituted an allegation of antitrust injury. 591 F. Supp. 683, 691-692 (Colo. 1983). It also held that Monfort had shown that the proposed merger would cause this profit squeeze to occur, and that the merger violated 7 of the Clayton Act. 4 Id., at 709-710. On appeal, Excel argued that an allegation of lost profits due to a "price-cost squeeze" was nothing more than an allegation of losses due to vigorous competition, and that losses from competition do not constitute antitrust injury. It also argued that the District Court erred in analyzing the facts relevant to the 7 inquiry. The Court of Appeals affirmed the judgment in all respects. It held that Monfort's allegation of a "price-cost squeeze" was not simply an allegation of injury from competition; in its view, the alleged "price-cost squeeze" was a claim that Monfort would be injured by what the Court of Appeals "consider[ed] to be a form of predatory pricing in which Excel will drive other companies out of the market by paying more to its cattle suppliers and charging less for boxed beef that it sells to institutional buyers and consumers." 761 F.2d 570, 575 (CA10 1985). On the 7 issue, the Court of Appeals held that the District Court's decision was not clearly erroneous. We granted certiorari, 474 U.S. 1049 (1985). [479 U.S. 104, 109] II This case requires us to decide, at the outset, a question we have not previously addressed: whether a private plaintiff seeking an injunction under 16 of the Clayton Act must show a threat of antitrust injury. To decide the question, we must look first to the source of the antitrust injury requirement, which lies in a related provision of the Clayton Act, 4, 15 U.S.C. 15. Like 16, 4 provides a vehicle for private enforcement of the antitrust laws. Under 4, "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States . . ., and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. 15. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, we held that plaintiffs seeking treble damages under 4 must show more than simply an "injury causally linked" to a particular merger; instead, "plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful." Id., at 489 (emphasis in original). The plaintiffs in Brunswick did not prove such injury. The plaintiffs were 3 of the 10 bowling centers owned by a relatively small bowling chain. The defendant, one of the two largest bowling chains in the country, acquired several bowling centers located in the plaintiffs' market that would have gone out of business but for the acquisition. The plaintiffs sought treble damages under 4, alleging as injury "the loss of income that would have accrued had the acquired centers gone bankrupt" and had competition in their markets consequently been reduced. Id., at 487. We held that this injury, although causally related to a merger alleged to violate 7, was not an antitrust injury, since "[i]t is inimical to [the antitrust] laws to award damages" for losses stemming [479 U.S. 104, 110] from continued competition. Id., at 488. This reasoning in Brunswick was consistent with the principle that "the antitrust laws . . . were enacted for `the protection of competition, not competitors.'" Ibid., quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962) (emphasis in original). Subsequent decisions confirmed the importance of showing antitrust injury under 4. In Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982), we found that a health-plan subscriber suffered antitrust injury as a result of the plan's "purposefully anticompetitive scheme" to reduce competition for psychotherapeutic services by reimbursing subscribers for services provided by psychiatrists but not for services provided by psychologists. Id., at 483. We noted that antitrust injury, "as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under 4," id., at 483, n. 19, and found it "plain that McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." Id., at 483. Similarly, in Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519 (1983), we applied "the Brunswick test," and found that the petitioner had failed to allege antitrust injury. Id., at 539-540. 5 Section 16 of the Clayton Act provides in part that "[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief . . . against threatened loss [479 U.S. 104, 111] or damage by a violation of the antitrust laws . . . ." 15 U.S.C. 26. It is plain that 16 and 4 do differ in various ways. For example, 4 requires a plaintiff to show actual injury, but 16 requires a showing only of "threatened" loss or damage; similarly, 4 requires a showing of injury to "business or property," cf. Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), while 16 contains no such limitation. 6 Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both 16 and 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent. 7 We agree. [479 U.S. 104, 112] The wording concerning the relationship of the injury to the violation of the antitrust laws in each section is comparable. Section 4 requires proof of injury "by reason of anything forbidden in the antitrust laws"; 16 requires proof of "threatened loss or damage by a violation of the antitrust laws." It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred. There is no indication that Congress intended such a result. Indeed, the legislative history of 16 is consistent with the view that 16 affords private plaintiffs injunctive relief only for those injuries cognizable under 4. According to the House Report: "Under section 7 of the act of July 2, 1890 [revised and incorporated into Clayton Act as 4], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law." H. R. Rep. No. 627, 63d Cong., 2d Sess., pt. 1, p. 21 (1914) (emphasis added). 8 [479 U.S. 104, 113] Sections 4 and 16 are thus best understood as providing complementary remedies for a single set of injuries. Accordingly, we conclude that in order to seek injunctive relief under 16, a private plaintiff must allege threatened loss or damage "of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful." Brunswick, 429 U.S., at 489 . We therefore turn to the question whether the proposed merger in this case threatened respondent with antitrust injury. III Initially, we confront the problem of determining what Monfort alleged the source of its injury to be. Monfort's complaint is of little assistance in this regard, since the injury [479 U.S. 104, 114] alleged therein - "an impairment of plaintiff's ability to compete" - is alleged to result from "a concentration of economic power." 1 App. 19. The pretrial order largely restates these general allegations. Record 37. At trial, however, Monfort did present testimony and other evidence that helped define the threatened loss. Monfort alleged that after the merger, Excel would attempt to increase its market share at the expense of smaller rivals, such as Monfort. To that end, Monfort claimed, Excel would bid up the price it would pay for cattle, and reduce the price at which it sold boxed beef. Although such a strategy, which Monfort labeled a "price-cost squeeze," would reduce Excel's profits, Excel's parent corporation had the financial reserves to enable Excel to pursue such a strategy. Eventually, according to Monfort, smaller competitors lacking significant reserves and unable to match Excel's prices would be driven from the market; at this point Excel would raise the price of its boxed beef to supracompetitive levels, and would more than recoup the profits it lost during the initial phase. 591 F. Supp., at 691-692. From this scenario two theories of injury to Monfort emerge: (1) a threat of a loss of profits stemming from the possibility that Excel, after the merger, would lower its prices to a level at or only slightly above its costs; (2) a threat of being driven out of business by the possibility that Excel, after the merger, would lower its prices to a level below its costs. 9 We discuss each theory in turn. A Monfort's first claim is that after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share. [479 U.S. 104, 115] Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 App. 74-75, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business. 10 The question is whether Monfort's loss of profits in such circumstances constitutes antitrust injury. To resolve the question, we look again to Brunswick v. Pueblo Bowl-O-Mat, supra. In Brunswick, we evaluated the antitrust significance of several competitors' loss of profits resulting from the entry of a large firm into its market. We concluded: "[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for `the protection of competition, not competitors,' Brown Shoe Co. v. United States, 370 U.S., at 320 . It is inimical to the purposes of these laws to award damages for the type of injury claimed here." Id., at 488. The loss of profits to the competitors in Brunswick was not of concern under the antitrust laws, since it resulted only from continued competition. Respondent argues that the losses in Brunswick can be distinguished from the losses alleged here, since the latter will result from an increase, rather than from a mere continuation, of competition. The range of actions [479 U.S. 104, 116] unlawful under 7 of the Clayton Act is broad enough, respondent claims, to support a finding of antitrust injury whenever a competitor is faced with a threat of losses from increased competition. 11 We find respondent's proposed construction of 7 too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for "[i]t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition." Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F.2d 1050, 1057 (CA6), cert. denied, 469 U.S. 1036 (1984). The logic of [479 U.S. 104, 117] Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury. B The second theory of injury argued here is that after the merger Excel would attempt to drive Monfort out of business by engaging in sustained predatory pricing. Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run. 12 It is a practice [479 U.S. 104, 118] that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice "inimical to the purposes of [the antitrust] laws," Brunswick, 429 U.S., at 488 , and one capable of inflicting antitrust injury. 13 The Court of Appeals held that Monfort had alleged "what we consider to be a form of predatory pricing . . . ." 761 F.2d, at 575. The court also found that Monfort "could only be harmed by sustained predatory pricing," and that "it is impossible to tell in advance of the acquisition" whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id., at 576. Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort's allegation of losses from the above-cost "price-cost squeeze" was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court's judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra. Second, the Court of Appeals can be understood to mean that Monfort had shown a credible threat of injury from below-cost pricing. To the extent the judgment rests on this ground, however, it must also be reversed, because Monfort [479 U.S. 104, 119] did not allege injury from below-cost pricing before the District Court. The District Court twice noted that Monfort had made no assertion that Excel would engage in predatory pricing. See 591 F. Supp., at 691 ("Plaintiff does not contend that predatory practices would be engaged in by Excel or IBP"); id., at 710 ("Monfort does not allege that IBP and Excel will in fact engage in predatory activities as part of the cost-price squeeze"). 14 Monfort argues that there is evidence in the record to support its view that it did raise a claim of predatory pricing below. This evidence, however, consists only of four passing references, three in deposition testimony, to the possibility that Excel's prices might dip below costs. See 1 App. 276; 2 App. 626, 666, 669. Such references fall far short of establishing an allegation of injury from predatory pricing. We conclude that Monfort neither raised nor proved any claim of predatory pricing before the District Court. 15 [479 U.S. 104, 120] IV In its amicus brief, the United States argues that the "danger of allowing a competitor to challenge an acquisition [479 U.S. 104, 121] on the basis of necessarily speculative claims of post-acquisition predatory pricing far outweighs the danger that any anticompetitive merger will go unchallenged." Brief for United States as Amicus Curiae 25. On this basis, the United States invites the Court to adopt in effect a per se rule "denying competitors standing to challenge acquisitions on the basis of predatory pricing theories." Id., at 10. We decline the invitation. As the foregoing discussion makes plain, supra, at 117-118, predatory pricing is an anticompetitive practice forbidden by the antitrust laws. While firms may engage in the practice only infrequently, there is ample evidence suggesting that the practice does occur. 16 It would be novel indeed for a court to deny standing to a party seeking an injunction against threatened injury merely because such injuries rarely occur. 17 In any case, nothing in [479 U.S. 104, 122] the language or legislative history of the Clayton Act suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing. V We hold that a plaintiff seeking injunctive relief under 16 of the Clayton Act must show a threat of antitrust injury, and that a showing of loss or damage due merely to increased competition does not constitute such injury. The record below does not support a finding of antitrust injury, but only of threatened loss from increased competition. Because respondent has therefore failed to make the showing 16 requires, we need not reach the question whether the proposed merger violates 7. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BLACKMUN took no part in the consideration or decision of this case. Footnotes [Footnote 1 As the District Court explained, "`[f]abrication' is the process whereby the carcass is broken down into either whole cuts (referred to as `primals', `subprimals' and `portions') or ground beef." 591 F. Supp. 683, 690 (Colo. 1983). Whole cuts that are then vacuum packed before shipment are called "boxed beef"; the District Court found that "80% of all beef received at the retail supermarket level and at the hotel, restaurant, and institutional (`HRI') level" is boxed beef. Ibid. [Footnote 2 The District Court relied on the testimony of one of Monfort's witnesses in determining market share. Id., at 706-707. According to this testimony, Monfort's share of the cattle slaughter market was 5.5%, Excel's share was 13.3%, and IBP's was 24.4%. 1 App. 69. Monfort's [479 U.S. 104, 107] share of the production market was 5.7%, Excel's share was 14.1%, and IBP's share was 27.3%. Id., at 64. After the merger, Excel's share of each market would increase to 20.4%. Id., at 64, 69; 761 F.2d 570, 577 (CA10 1985). [Footnote 3 Section 16 states: "Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of subtitle IV of title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney's fee, to such plaintiff." 15 U.S.C. 26. [Footnote 4 Section 7 prohibits mergers when the "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly," 15 U.S.C. 18. [Footnote 5 A showing of antitrust injury is necessary, but not always sufficient, to establish standing under 4, because a party may have suffered antitrust injury but may not be proper plaintiff under 4 for other reasons. See generally Page, The Scope of Liability for Antitrust Violations, 37 Stan. L. Rev. 1445, 1483-1485 (1985) (distinguishing concepts of antitrust injury and antitrust standing). Thus, in Associated General Contractors we considered other factors in addition to antitrust injury to determine whether the petitioner was a proper plaintiff under 4. 459 U.S., at 540 . As we explain, n. 6, infra, however, many of these other factors are not relevant to the standing inquiry under 16. [Footnote 6 Standing analysis under 16 will not always be identical to standing analysis under 4. For example, the difference in the remedy each section provides means that certain considerations relevant to a determination of standing under 4 are not relevant under 16. The treble-damages remedy, if afforded to "every person tangentially affected by an antitrust violation," Blue Shield of Virginia v. McCready, 457 U.S. 465, 476 -477 (1982), or for "all injuries that might conceivably be traced to an antitrust violation," Hawaii v. Standard Oil Co., 405 U.S., at 263 , n. 14, would "open the door to duplicative recoveries," id., at 264, and to multiple lawsuits. In order to protect against multiple lawsuits and duplicative recoveries, courts should examine other factors in addition to antitrust injury, such as the potential for duplicative recovery, the complexity of apportioning damages, and the existence of other parties that have been more directly harmed, to determine whether a party is a proper plaintiff under 4. See Associated General Contractors, 459 U.S., at 544 -545; Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Conversely, under 16, the only remedy available is equitable in nature, and, as we recognized in Hawaii v. Standard Oil Co., "the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one." 405 U.S., at 261 . Thus, because standing under 16 raises no threat of multiple lawsuits or duplicative recoveries, some of the factors other than antitrust injury that are appropriate to a determination of standing under 4 are not relevant under 16. [Footnote 7 See Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334 (CA7 1986); Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F.2d 444, 452-453 (CA8 1985), cert. denied, 476 U.S. 1163 (1986); Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1358 (CA6), cert. dism'd, 469 U.S. 1200 [479 U.S. 104, 112] (1985); Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205, 210-211 (CA3 1980). [Footnote 8 See also S. Rep. No. 698, 63d Cong., 2d Sess., pt. 2, pp. 17-18, 50 (1914). Although the references to 16 in the debates on the passage of the Clayton Act are scarce, those that were made are consistent with the House and Senate Reports. For example, in this excerpt from a provision-by-provision description of the bill, Representative McGillicuddy (a member of the House Judiciary Committee) stated: "Under the present law any person injured in his business or property by acts in violation of the Sherman antitrust law may recover his damage. In fact, under the provisions of the law he is entitled to recover threefold damage whenever he is able to prove his case. There is no provision [479 U.S. 104, 113] under the present law, however, to prevent threatened loss or damage even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights? "The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that will cause such loss or damage. Under this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy. Thus the bill not only protects the individual from loss or damage, but it relieves him of the tremendous burden of long and expensive litigation, often intolerable." 51 Cong. Rec. 9261 (1914) (emphasis added). Representative Floyd described the nature of the 16 remedy in these terms: "In section 16 . . . is a provision that gives the litigant injured in his business an entirely new remedy. . . . . . ". . . [S]ection 16 gives any individual, company, or corporation . . . or combination the right to go into court and enjoin the doing of these unlawful acts, instead of having to wait until the act is done and the business destroyed and then sue for damages. . . . [S]o that if a man is injured by a discriminatory contract, by a tying contract, by the unlawful acquisition of stock of competing corporations, or by reason of someone acting unlawfully as a director in two banks or other corporations, he can go into court and enjoin and restrain the party from committing such unlawful acts." Id., at 16319. [Footnote 9 In its brief, Monfort also argues that it would be injured by "the trend toward oligopoly pricing" that could conceivably follow the merger. Brief for Respondent 18-20. There is no indication in the record that this claim was raised below, however, and so we do not address it here. [Footnote 10 In this case, Monfort has conceded that its viability would not be threatened by Excel's decision to lower prices: "Because Monfort's operations were as efficient as those of Excel, only below-cost pricing could remove Monfort as an obstacle." Id., at 11-12; see also id., at 5, and n. 6 ("Monfort proved it was just as efficient as Excel"); id., at 18; 761 F.2d, at 576 ("Monfort would only be harmed by sustained predatory pricing"). [Footnote 11 Respondent finds support in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 for the view that Congress intends the courts to apply 7 so as to protect the viability of small competitors. The Senate Report, for example, cites with approval this Court's statement in United States v. Von's Grocery Co., 384 U.S. 270, 275 (1966), that "the basic purpose of the 1950 Celler-Kefauver Act [amending 7 of the Clayton Act] was to prevent economic concentration in the American economy by keeping a large number of small competitors in business." S. Rep. No. 94-803, p. 63 (1976). Even if respondent is correct that Congress intended the courts to apply 7 so as to keep small competitors in business at the expense of efficiency, a proposition about which there is considerable disagreement, such congressional intent is of no use to Monfort, which has conceded that it will suffer only a loss of profits, and not be driven from the market, should Excel engage in a cost-price squeeze. See n. 10, supra. [Footnote 12 Most commentators reserve the term predatory pricing for pricing below some measure of cost, although they differ on the appropriate measure. See, e. g., Areeda & Turner, Predatory Pricing and Related Practices under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ. 289 (1980) (reviewing various proposed definitions). No consensus has yet been reached on the proper definition of predatory pricing in the antitrust context, however. For purposes of decision in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), for example, we defined predatory pricing as either "(i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost." Id., at 585, n. 8. Definitions of predatory pricing also vary among the Circuits. Compare Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F.2d 1050, 1056-1057 (CA6) (pricing below marginal or average variable cost presumptively illegal, pricing above such cost presumptively legal), cert. denied, 469 U.S. 1036 (1984), with Transamerica Computer Co. v. International Business Machines Corp., 698 F.2d 1377 (CA9) (pricing above average total costs may be deemed predatory upon showing of predatory intent), cert. denied, 464 U.S. 955 (1983). Although neither the District Court nor the Court of Appeals explicitly defined the term predatory pricing, their use of the term is consistent with a definition of pricing below cost. Such a definition is sufficient for purposes of this decision, because only below-cost pricing would threaten to drive Monfort from the market, see n. 9, supra, and because Monfort made no allegation that Excel would act with predatory intent. Thus, in this case, as in Matsushita Electric Industrial Co. v. Zenith Radio Corp., supra, we find it unnecessary to "consider whether recovery should ever be available . . . when the pricing in question is above some measure of [479 U.S. 104, 118] incremental cost," 475 U.S., at 585 , n. 9, or whether above-cost pricing coupled with predatory intent is ever sufficient to state a claim of predation. See n. 11, supra. [Footnote 13 See also Brunswick, 429 U.S., at 489 , n. 14 ("The short-term effect of certain anticompetitive behavior - predatory below-cost pricing, for example - may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened"). [Footnote 14 The Court of Appeals may have relied on the District Court's speculation that the merger raised "a distinct possibility . . . of predatory pricing." 591 F. Supp., at 710. This statement directly followed the District Court's second observation that Monfort did not raise such a claim, however, and thus was clearly dicta. [Footnote 15 Even had Monfort actually advanced a claim of predatory pricing, we doubt whether the facts as found by the District Court would have supported it. Although Excel may have had the financial resources to absorb losses over an extended period, other factors, such as Excel's share of market capacity and the barriers to entry after competitors have been driven from the market, must also be considered. In order to succeed in a sustained campaign of predatory pricing, a predator must be able to absorb the market shares of its rivals once prices have been cut. If it cannot do so, its attempt at predation will presumably fail, because there will remain in the market sufficient demand for the competitors' goods at a higher price, and the competitors will not be driven out of business. In this case, Excel's 20.4% market share after the merger suggests it would lack sufficient market power to engage in predatory pricing. See Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L. J. 284, 292 (1977) (60% share necessary); Areeda & Turner, Williamson on Predatory Pricing, 87 Yale L. J. 1337, 1348 (1978) (60% share not enough). It is possible that a firm with a low market share might nevertheless [479 U.S. 104, 120] have sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals. According to Monfort's expert witness, however, Excel's postmerger share of market capacity would be only 28.4%. 1 App. 66. Moreover, it appears that Excel, like the other large beef packers, operates at over 85% of capacity. Id., at 135-136. Thus Excel acting alone would clearly lack sufficient capacity after the merger to satisfy all or most of the demand for boxed beef. Although it is conceivable that Excel could act collusively with other large packers, such as IBP, in order to make the scheme work, the District Court found that Monfort did not "assert that Excel and IBP would act in collusion with each other in an effort to drive others out of the market," 591 F. Supp., at 692. With only a 28.4% share of market capacity and lacking a plan to collude, Excel would harm only itself by embarking on a sustained campaign of predatory pricing. Courts should not find allegations of predatory pricing credible when the alleged predator is incapable of successfully pursuing a predatory scheme. See n. 17, infra. It is also important to examine the barriers to entry into the market, because "without barriers to entry it would presumably be impossible to maintain supracompetitive prices for an extended time." Matsushita, 475 U.S., at 591 , n. 15. In discussing the potential for oligopoly pricing in the beef-packing business following the merger, the District Court found significant barriers to entry due to the "costs and delays" of building new plants, and "the lack of [available] facilities and the cost [$20-40 million] associated with refurbishing old facilities." 591 F. Supp., at 707-708. Although the District Court concluded that these barriers would restrict entry following the merger, the court's analysis was premised on market conditions during the premerger period of competitive pricing. Ibid. In evaluating entry barriers in the context of a predatory pricing claim, however, a court should focus on whether significant entry barriers would exist after the merged firm had eliminated some of its rivals, because at that point the remaining firms would begin to charge supracompetitive prices, and the barriers that existed during competitive conditions might well prove insignificant. In this case, for example, although costs of entry into the current competitive market may be high, if Excel and others in fact succeeded in driving competitors out of the market, the facilities of the bankrupt competitors would then be available, and the record shows, without apparent contradiction, that shut-down plants could be producing efficiently in a matter of months and that equipment and a labor force could [479 U.S. 104, 121] readily be obtained, 1 App. 95-96. Similarly, although the District Court determined that the high costs of building new plants and refurbishing old plants created a "formidable" barrier to entry given "the low profit margins in the beef industry," 591 F. Supp., at 707, this finding speaks neither to the likelihood of entry during a period of supracompetitive profitability nor to the potential return on investment in such a period. [Footnote 16 See Koller, The Myth of Predatory Pricing: An Empirical Study, 4 Antitrust Law & Econ. Rev. 105 (1971); Miller, Comments on Baumol and Ordover, 28 J. Law & Econ. 267 (1985). [Footnote 17 Claims of threatened injury from predatory pricing must, of course, be evaluated with care. As we discussed in Matsushita Electric Industrial Co. v. Zenith Radio Corp., the likelihood that predatory pricing will benefit the predator is "inherently uncertain: the short-run loss [from pricing below cost] is definite, but the long-run gain depends on successfully neutralizing the competition. . . . [and] on maintaining monopoly power for long enough both to recoup the predator's losses and to harvest some additional gain." 475 U.S., at 589 . Although the commentators disagree as to whether it is ever rational for a firm to engage in such conduct, it is plain that the obstacles to the successful execution of a strategy of predation are manifold, and that the disincentives to engage in such a strategy are accordingly numerous. See, e. g., id., at 588-593 (discussing obstacles to successful predatory pricing conspiracy); R. Bork, The Antitrust Paradox 144-159 (1978); McGee, Predatory Pricing Revisited, 23 J. Law & Econ., at 291-300; Posner, The Chicago School of Antitrust Analysis, 127 [479 U.S. 104, 122] U. Pa. L. Rev. 925, 939-940 (1979). As we stated in Matsushita, "predatory pricing schemes are rarely tried, and even more rarely successful." 475 U.S., at 589 . Moreover, the mechanism by which a firm engages in predatory pricing - lowering prices - is the same mechanism by which a firm stimulates competition; because "cutting prices in order to increase business often is the very essence of competition . . . [;] mistaken inferences . . . are especially costly, because they chill the very conduct the antitrust laws are designed to protect." Id., at 594. JUSTICE STEVENS, with whom JUSTICE WHITE joins, dissenting. This case presents the question whether the antitrust laws provide a remedy for a private party that challenges a horizontal merger between two of its largest competitors. The issue may be approached along two fundamentally different paths. First, the Court might focus its attention entirely on the postmerger conduct of the merging firms and deny relief [479 U.S. 104, 123] unless the plaintiff can prove a violation of the Sherman Act. Second, the Court might concentrate on the merger itself and grant relief if there is a significant probability that the merger will adversely affect competition in the market in which the plaintiff must compete. Today the Court takes a step down the former path; 1 I believe that Congress has directed us to follow the latter path. In this case, one of the major firms in the beef-packing market has proved to the satisfaction of the District Court, 591 F. Supp. 683, 709-710 (Colo. 1983), and the Court of Appeals, 761 F.2d 570, 578-582 (CA10 1985), that the merger between Excel and Spencer Beef is illegal. This Court holds, however, that the merger should not be set aside because the adverse impact of the merger on respondent's profit margins does not constitute the kind of "antitrust injury" that the Court described in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977). As I shall demonstrate, Brunswick merely rejected a "novel damages theory," id., at 490; the Court's implicit determination that Brunswick forecloses the appropriate line of inquiry in this quite different case is therefore misguided. In my view, a [479 U.S. 104, 124] competitor in Monfort's position has standing to seek an injunction against the merger. Because Monfort must compete in the relevant market, proof establishing that the merger will have a sufficient probability of an adverse effect on competition to violate 7 is also sufficient to authorize equitable relief. I Section 7 of the Clayton Act was enacted in 1914, 38 Stat. 731, and expanded in 1950, 64 Stat. 1125, because Congress concluded that the Sherman Act's prohibition against mergers was not adequate. 2 The Clayton Act, unlike the Sherman Act, proscribes certain combinations of competitors that do not produce any actual injury, either to competitors or to competition. An acquisition is prohibited by 7 if "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. 18. The legislative history teaches us that this delphic language was designed "to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding." S. Rep. No. 1775, 81st Cong., 2d Sess., 4-5 (1950). 3 In Brunswick, [479 U.S. 104, 125] supra, this Court recognized that 7 is "a prophylactic measure, intended `primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil . . . .'" 429 U.S., at 485 (quoting United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 597 (1957)). The 1950 amendment to 7 was particularly concerned with the problem created by a merger which, when viewed by itself, would appear completely harmless, but when considered in its historical setting might be dangerous to competition. As Justice Stewart explained: "The principal danger against which the 1950 amendment was addressed was the erosion of competition through the cumulative centripetal effect of acquisitions by large corporations, none of which by itself might be sufficient to constitute a violation of the Sherman Act. Congress' immediate fear was that of large corporations buying out small companies. A major aspect of that fear was the perceived trend toward absentee ownership of local business. Another, more generalized, congressional purpose revealed by the legislative history was to protect small businessmen and to stem the rising tide of concentration in the economy. These goals, Congress thought, could be achieved by `arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency.' Brown Shoe Co. v. United States, [370 U.S.,] at 317." United States v. Von's Grocery Co., 384 U.S. 270, 283 -284 (1966) (dissenting). Thus, a merger may violate 7 of the Clayton Act merely because it poses a serious threat to competition and even though the evidence falls short of proving the kind of actual restraint that violates the Sherman Act, 15 U.S.C. 1. The language of 16 of the Clayton Act also reflects Congress' emphasis on probable harm rather than actual harm. Section 16 authorizes private parties to obtain injunctive relief [479 U.S. 104, 126] "against threatened loss or damage" by a violation of 7. 4 The broad scope of the language in both 7 and 16 identifies the appropriate standing requirements for injunctive relief. As the Court has squarely held, it is the threat of harm, not actual injury, that justifies equitable relief: "The evident premise for striking [the injunction at issue] was that Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for 16 of the Clayton Act, 15 U.S.C. 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of `threatened' injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; . . . he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130 (1969) (citations omitted). Judged by these standards, respondent's showing that it faced the threat of loss from an impending antitrust violation clearly conferred standing to obtain injunctive relief. Respondent [479 U.S. 104, 127] alleged, and in the opinion of the courts below proved, the injuries it would suffer from a violation of 7: "Competition in the markets for the procurement of fed cattle and the sale of boxed beef will be substantially lessened and a monopoly may tend to be created in violation of Section 7 of the Clayton Act; "Concentration in those lines of commerce will be increased and the tendency towards concentration will be accelerated." 1 App. 21. More generally, given the statutory purposes to protect small businesses and to stem the rising tide of concentration in particular markets, a competitor trying to stay in business in a changing market must have standing to ask a court to set aside a merger that has changed the character of the market in an illegal way. Certainly the businesses - small or large - that must face competition in a market altered by an illegal merger are directly affected by that transaction. Their inability to prove exactly how or why they may be harmed does not place them outside the circle of interested parties whom the statute was enacted to protect. II Virtually ignoring the language and history of 7 of the Clayton Act and the broad scope of the Act's provision for injunctive relief, the Court bases its decision entirely on a case construing the "private damages action provisions" of the Act. Brunswick, 429 U.S., at 478 . In Brunswick, we began our analysis by acknowledging the difficulty of meshing 7, "a statutory prohibition against acts that have a potential to cause certain harms," with 4, a "damages action intended to remedy those harms." Id., at 486. We concluded that a plaintiff must prove more than a violation of 7 to recover damages, "since such proof establishes only that injury may result." Ibid. Beyond the special nature of an action for treble damages, 16 differs from 4 because by its terms it requires only that the antitrust violation threaten [479 U.S. 104, 128] the plaintiff with loss or damage, not that the violation cause the plaintiff actual "injur[y] in his business or property." 15 U.S.C. 15. In the Brunswick case, the Court set aside a damages award that was based on the estimated additional profits that the plaintiff would have earned if competing bowling alleys had gone out of business instead of being acquired by the defendant. We concluded "that the loss of windfall profits that would have accrued had the acquired centers failed" was not the kind of actual injury for which damages could be recovered under 4. 429 U.S., at 488 . That injury "did not occur `by reason of' that which made the acquisitions unlawful." Ibid. In contrast, in this case it is the threatened harm - to both competition and to the competitors in the relevant market - that makes the acquisition unlawful under 7. The Court's construction of the language of 4 in Brunswick is plainly not controlling in this case. 5 The concept of "antitrust injury," which is at the heart of the treble-damages action, is simply not an element of a cause of action for injunctive relief that depends on finding a reasonable threat that an incipient disease will poison an entire market. A competitor plaintiff who has proved a violation of 7, as the Brunswick Court recognized, has established that injury may result. This showing satisfies the language of 16 provided that the plaintiff can show that injury may result to him. When the proof discloses a reasonable probability that competition will be harmed as a result of a merger, I would also conclude that there is a reasonable probability that [479 U.S. 104, 129] a competitor of the merging firms will suffer some corresponding harm in due course. In my opinion, that reasonable probability gives the competitor an interest in the proceeding adequate to confer standing to challenge the merger. To hold otherwise is to frustrate 7 and to read 16 far too restrictively. It would be a strange antitrust statute indeed which defined a violation enforceable by no private party. Effective enforcement of the antitrust laws has always depended largely on the work of private attorney generals, for whom Congress made special provision in the Clayton Act itself. 6 As recently as 1976, Congress specifically indicated its intent to encourage private enforcement of 16 by authorizing recovery of a reasonable attorney's fee by a plaintiff in an action for injunctive relief. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1396 (amending 15 U.S.C. 26). The Court misunderstands the message that Congress conveyed in 1914 and emphasized in 1950. If, as the District Court and the Court of Appeals held, the merger is illegal, it should be set aside. I respectfully dissent. [Footnote 1 Whether or not it so intends, the Court in practical effect concludes that a private party may not obtain injunctive relief against a horizontal merger unless the actual or probable conduct of the merged firms would establish a violation of the Sherman Act. The Court suggests that, to support a claim of predatory pricing, a competitor must demonstrate that the merged entity is "able to absorb the market shares of its rivals once prices have been cut," either because it has a high market share or because it has "sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals." Ante, at 119-120, n. 15. The Court would also require a competitor to demonstrate that significant barriers to entry would exist after "the merged firm had eliminated some of its rivals . . . ." Ante, at 120, n. 15. Indeed, the Court expressly states that the antitrust laws "require the courts to protect small businesses . . . only against the loss of profits from practices forbidden by the antitrust laws." Ante, at 116 (emphasis added). By emphasizing postmerger conduct, the Court reduces to virtual irrelevance the related but distinct issue of the legality of the merger itself. [Footnote 2 "Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the act of July 2, 1890 [the Sherman Act], or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation." S. Rep. No. 698, 63d Cong., 2d Sess. 1 (1914). [Footnote 3 This Court has described the legislative purpose of 7 as follows: "[I]t is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power to brake this force at its outset and before it gathered momentum." Brown Shoe Co. v. United States, 370 U.S. 294, 317 -318 (1962) (footnote omitted). [Footnote 4 Section 16 states, in relevant part: "Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. . . ." 15 U.S.C. 26. [Footnote 5 In Brunswick, we reserved this question, stating: "The issue for decision is a narrow one. . . . Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares." 429 U.S., at 484 (footnote omitted). Nor did we reach the issue of a competitor's standing to seek relief from a merger under 16 in Associated General Contractors of California, Inc. v. Carpenters, 459 U.S. 519 (1983). Id., at 524, n. 5. [Footnote 6 15 U.S.C. 15. This Court has emphasized the importance of the statutory award of fees to private antitrust plaintiffs as part of the effective enforcement of the antitrust laws. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130 -131 (1969), the Court observed: "[T]he purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws." See also Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139 (1968); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 502 (1969); Hawaii v. Standard Oil Co., 405 U.S. 251, 262 (1972). [479 U.S. 104, 130]

conservative

other

economic_activity

1948-078-01

United States Supreme Court KILPATRICK V. TEXAS & P. RY. CO.(1949) No. 233 Argued: Decided: May 31, 1949 Mr. Wm. H. DeParcq, Minneapolis, Minn., for petitioner. Mr. Porter R. Chandler, New York City, for respondent. Mr. Chief Justice VINSON, delivered the opinion of the Court. This litigation has a rather involved history. In 1946, while in the employ of respondent rai road, petitioner [ Kilpatrick v. Texas & P. Ry. Co. 337 U.S. 75 (1949) ] [337 U.S. 75 , 76] was seriously injured in an accident at Big Spring, Texas. Petitioner promptly brought suit under the Federal Employers' Liability Act1 in the United States District Court for the Southern District of New York. That court dismissed the action on the ground that the railroad could not properly be served in that district. 1947, 72 F.Supp. 635. Petitioner appealed from this dismissal; and, some days after taking the appeal, instituted an action in the District Court for the Northern District of Texas. An answer was filed in the latter action and a number of depositions were taken. In March, 1948, the Court of Appeals for the Second Circuit held that the railroad was subject to service in New York. 166 F.2d 788. Thereupon petitioner moved to dismiss his Texas action. When the district court refused to dismiss, petitioner appealed and also applied for a writ of prohibition to the Court of Appeals for the Fifth Circuit. That court declined to issue the writ. 1948, 167 F.2d 471. In No. 275 petitioner requests this Court to issue a writ of certiorari to review the Court of Appeals action. And in No. 119 Misc., we are asked to issue a writ of prohibition directing the District Court for the Northern District of Texas not to proceed with the trial. We are advised that counsel have arranged that further progress of the Texas trial shall be held in abeyance pending our decision. We are this day denying those petitions; see 337 U.S. 912 , 1151. When the New York cause was returned to the district court, after we had denied the railroad's petition for certiorari to review the court of appeals' determination that it might be sued there, 1948, 335 U.S. 814 , petitioner moved for a preference in the order of trial. The court below, the United States District Court for the Southern [337 U.S. 75 , 77] District of New York, denied this motion. Respondent filed a cross-motion for an order transferring the action to the United States District Court for the Northern District of Texas. This motion was granted. The order of transfer relies on the authority of 28 U.S.C. 1404(a), 28 U.S.C.A. 1404(a),2 and cites Hayes v. Chicago, R.I. & P.R. Co., D.C.1948, 79 F.Supp. 821, and Nunn v. Chicago, M., St. P. & P.R. Co., D.C.1948, 80 F.Supp. 745. To nullify this order, petitioner moved this Court for leave to file a petition for a writ of certiorari or a writ of mandamus or any appropriate relief. We assigned the case for hearing on the motion for leave to file. Ex parte Collett, 1948, 335 U.S. 897 . In support of his motion, petitioner, urges that the general purposes of the 1948 revision of Title 28 by the Congress indicate no intention to 'emasculate' the right to choose venue afforded under the Federal Employers' Liability Act; that 'any civil action', as used in 1404(a) of the Code, refers only to civil actions specified in the Venue Chapter of Title 28, 1391-1406, inclusive; and that the court below 'ignored the known temper of legislative opinion' as revealed chiefly by Congressional action on the Jennings Bill. We fail to see anything in these contentions which can distinguish this case from Ex parte Collett, 337 U.S. 55 . In that opinion we have demonstrated that the venue provisions of 6 of the Federal Employers' Liability Act are one thing and the transfer provisions of 1404(a) of the present Judicial Code another; that 'any civil action' means what it says; and that Congress was fully informed as to the significance [337 U.S. 75 , 78] of 1404(a). For these reasons, e conclude that the District Court for the Southern District of New York acted within its statutory authority. The motion must be Denied. Mr. Justice BLACK and Mr. Justice DOUGLAS dissent for the reasons stated in the dissenting opinion of Mr. Justice DOUGLAS in United States v. National City Lines, 337 U.S. 78 . Footnotes [Footnote 1 35 Stat. 65, as amended by 36 Stat. 291, and 53 Stat. 1404, 45 U.S. C. 51Ä59, 45 U.S.C.A. 51Ä59. [Footnote 2 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' This provision became effective Sept. 1, 1948. Pub.L.No.773, 80th Cong., 2d Sess., 38, June 25, 1948, 28 U.S.C.A. 1 note.

conservative

facility

judicial_power

2005-024-01

United States Supreme Court UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC., dba CONAGRA REFRIGERATED FOODS(2006) No. 04-597 Argued: November 2, 2005Decided: January 23, 2006 After respondent ConAgra warned companies selling equipment and processes for browning precooked meats that it intended to protect its rights under its patent for that process, petitioner Unitherm, whose president had invented the process six years before ConAgra filed its patent application, and one of ConAgra's direct competitors jointly filed suit in an Oklahoma federal court. As relevant here, they sought a declaration that ConAgra's patent was invalid and unenforceable and alleged that ConAgra had violated §2 of the Sherman Act by attempting to enforce a patent obtained by fraud on the Patent and Trademark Office, see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174. The District Court found the patent invalid and allowed the Walker Process claim to proceed to trial. Before the case was submitted to the jury, ConAgra moved for a directed verdict under Federal Rule of Civil Procedure 50(a) based on legal insufficiency of the evidence. The court denied the motion, the jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b) nor moved for a new trial on antitrust liability pursuant to Rule 59. On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the Walker Process verdict. The court applied Tenth Circuit law, under which a party that has failed to file a postverdict sufficiency of the evidence challenge may nonetheless raise such a claim on appeal, so long as the party filed a Rule 50(a) motion before submission of the case to the jury. The only available relief in such a circumstance is a new trial. Freed to examine the sufficiency of the evidence, the Federal Circuit vacated the judgment and ordered a new trial. Held:Since respondent failed to renew its preverdict motion as specified in Rule 50(b), the Federal Circuit had no basis for reviewing respondent's sufficiency of the evidence challenge. Rule 50 sets forth the requirements, establishing two stages, for challenging the sufficiency of the evidence in a civil jury trial. Rule 50(a) allows a challenge prior to the case's submission to the jury, authorizing the district court to grant the motion at the court's discretion. Rule 50(b), by contrast, sets forth the requirements for renewing the challenge after the jury verdict and entry of judgment. A party's failure to file a Rule 50(b) postverdict motion deprives an appellate court of the "power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 218. It also deprives an appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury's verdict, Globe Liquor Co. v. San Roman, 332 U.S. 571, and where the district court expressly reserved a party's preverdict directed verdict motion and then denied it after the verdict, Johnson v. New York, N. H. & H. R. Co., 344 U.S. 48. A postverdict motion is necessary because determining "whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart." Cone, supra, at 216. Moreover, the requirement "is not an idle motion" but "an essential part of the rule, firmly grounded in principles of fairness." Johnson, supra, at 53. These authorities require reversal of the judgment below. This Court's observations about the postverdict motion's necessity and the benefits of the district court's input at that stage apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. Contrary to respondent's argument, the Cone, Globe Liquor, and Johnson outcomes underscore this holding. Those litigants all secured new trials, but they had moved for a new trial postverdict in the district court and did not seek to establish their entitlement to a new trial based solely on a denied Rule 50(a) motion. This result is further validated by the purported basis of respondent's appeal, namely the District Court's denial of its Rule 50(a) motion. Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party's Rule 50(a) motion cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Respondent, rather than seeking to appeal the claim raised in its Rule 50(a) motion, seeks a new trial based on legal insufficiency of the evidence. If a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief sought in its Rule 50(a) motion, then surely respondent is foreclosed from seeking relief it did not and could not seek in its preverdict motion. Rule 50(b)'s text confirms that respondent's Rule 50(a) motion did not give the District Court the option of ordering a new trial, for it provides that a district court may only order a new trial based on issues raised in a Rule 50(a) motion when "ruling on a renewed motion" under Rule 50(b). If the District Court lacked such power, then the Court of Appeals was similarly powerless. Rule 50(a)'s text and application also support this result. A district court may enter judgment as a matter of law when it concludes that the evidence is legally insufficient, but it is not required to do so. Thus, the denial of respondent's Rule 50(a) motion was not error, but merely an exercise of the District Court's discretion. Pp. 4-12. 375 F.3d 1341, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C.J., and O'Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. UNITHERM FOOD SYSTEMS, INC., PETITIONER v.SWIFT-ECKRICH, INC., dba CONAGRAREFRIGERATED FOODS on writ of certiorari to the united states court ofappeals for the federal circuit [January 23, 2006] Justice Thomas delivered the opinion of the Court. Ordinarily, a party in a civil jury trial that believes the evidence is legally insufficient to support an adverse jury verdict will seek a judgment as a matter of law by filing a motion pursuant to Federal Rule of Civil Procedure 50(a) before submission of the case to the jury, and then (if the Rule 50(a) motion is not granted and the jury subsequently decides against that party) a motion pursuant to Rule 50(b). In this case, however, the respondent filed a Rule 50(a) motion before the verdict, but did not file a Rule 50(b) motion after the verdict. Nor did respondent request a new trial under Rule 59. The Court of Appeals nevertheless proceeded to review the sufficiency of the evidence and, upon a finding that the evidence was insufficient, remanded the case for a new trial. Because our cases addressing the requirements of Rule 50 compel a contrary result, we reverse. I The genesis of the underlying litigation in this case was ConAgra's attempt to enforce its patent for "A Method for Browning Precooked Whole Muscle Meat Products," U.S. Patent No. 5,952,027 ('027 patent). In early 2000, ConAgra issued a general warning to companies who sold equipment and processes for browning precooked meats explaining that it intended to "'aggressively protect all of [its] rights under [the '027] patent.'" 375 F.3d 1341, 1344 (CA Fed. 2004). Petitioner Unitherm sold such processes, but did not receive ConAgra's warning. ConAgra also contacted its direct competitors in the precooked meat business, announcing that it was "'making the '027 Patent and corresponding patents that may issue available for license at a royalty rate of 10˘ per pound.'" Id., at 1345. Jennie-O, a direct competitor, received ConAgra's correspondence and undertook an investigation to determine its rights and responsibilities with regard to the '027 patent. Jennie-O determined that the browning process it had purchased from Unitherm was the same as the process described in the '027 patent. Jennie-O further determined that the '027 patent was invalid because Unitherm's president had invented the process described in that patent six years before ConAgra filed its patent application. Consistent with these determinations, Jennie-O and Unitherm jointly sued ConAgra in the Western District of Oklahoma. As relevant here, Jennie-O and Unitherm sought a declaration that the '027 patent was invalid and unenforceable, and alleged that ConAgra had violated §2 of the Sherman Act, 15 U.S.C. §2, by attempting to enforce a patent that was obtained by committing fraud on the Patent and Trademark Office (PTO). See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174 (1965) (holding that "the enforcement of a patent procured by fraud on the Patent Office may be violative of §2 of the Sherman Act provided the other elements necessary to a §2 case are present"). The District Court construed the '027 patent and determined that it was invalid based on Unitherm's prior public use and sale of the process described therein. 35 U.S.C. §102(b). After dismissing Jennie-O for lack of antitrust standing, the District Court allowed Unitherm's Walker Process claim to proceed to trial. Prior to the court's submission of the case to the jury, ConAgra moved for a directed verdict under Rule 50(a) based on legal insufficiency of the evidence. The District Court denied that motion.1 The jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b), nor moved for a new trial on antitrust liability pursuant to Rule 59.2 On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the jury's Walker Process verdict. Although the Federal Circuit has concluded that a party's "failure to present the district court with a post-verdict motion precludes appellate review of sufficiency of the evidence," Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 862 (1991), in the instant case it was bound to apply the law of the Tenth Circuit. 375 F.3d, at 1365, n.7 ("On most issues related to Rule 50 motions ... we generally apply regional circuit law unless the precise issue being appealed pertains uniquely to patent law"). Under Tenth Circuit law, a party that has failed to file a postverdict motion challenging the sufficiency of the evidence may nonetheless raise such a claim on appeal, so long as that party filed a Rule 50(a) motion prior to submission of the case to the jury. Cummings v. General Motors Corp., 365 F.3d 944, 950-951 (2004). Notably, the only available relief in such a circumstance is a new trial. Id., at 951. Freed to examine the sufficiency of the evidence, the Federal Circuit concluded that, although Unitherm had presented sufficient evidence to support a determination that ConAgra had attempted to enforce a patent that it had obtained through fraud on the PTO, 375 F.3d, at 1362, Unitherm had failed to present evidence sufficient to support the remaining elements of its antitrust claim. Id., at 1365 ("Unitherm failed to present any economic evidence capable of sustaining its asserted relevant antitrust market, and little to support any other aspect of its Section 2 claim"). Accordingly, it vacated the jury's judgment in favor of Unitherm and remanded for a new trial. We granted certiorari, 543 U.S. 1186 (2005), and now reverse. II Federal Rule of Civil Procedure 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges--prior to submission of the case to the jury, and after the verdict and entry of judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the District Court to grant such motions at the court's discretion: "(a) Judgment as a Matter of Law. "(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. "(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Rule 50(b), by contrast, sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment. "(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment--and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: "(1) if a verdict was returned: "(A) allow the judgment to stand, "(B) order a new trial, or "(C) direct entry of judgment as a matter of law ...." This Court has addressed the implications of a party's failure to file a postverdict motion under Rule 50(b) on several occasions and in a variety of procedural contexts. This Court has concluded that, "[i]n the absence of such a motion" an "appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947). This Court has similarly concluded that a party's failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury's verdict, Globe Liquor Co. v. San Roman, 332 U.S. 571 (1948), and where the district court expressly reserved a party's preverdict motion for a directed verdict and then denied that motion after the verdict was returned. Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48 (1952). A postverdict motion is necessary because "[d]etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart."3 Cone, supra, at 216. Moreover, the "requirement of a timely application for judgment after verdict is not an idle motion" because it "is ... an essential part of the rule, firmly grounded in principles of fairness." Johnson, supra, at 53. The foregoing authorities lead us to reverse the judgment below. Respondent correctly points out that these authorities address whether an appellate court may enter judgment in the absence of a postverdict motion, as opposed to whether an appellate court may order a new trial (as the Federal Circuit did here). But this distinction is immaterial. This Court's observations about the necessity of a postverdict motion under Rule 50(b), and the benefits of the district court's input at that stage, apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. In Cone, this Court concluded that, because Rule 50(b) permits the district court to exercise its discretion to choose between ordering a new trial and entering judgment, its "appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted." 330 U.S., at 216 (emphasis added). Similarly, this Court has determined that a party may only pursue on appeal a particular avenue of relief available under Rule 50(b), namely the entry of judgment or a new trial, when that party has complied with the Rule's filing requirements by requesting that particular relief below. See Johnson, supra, at 54 ("Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n.o.v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor").4 Despite the straightforward language employed in Cone, Globe Liquor, and Johnson, respondent maintains that those cases dictate affirmance here, because in each of those cases the litigants secured a new trial. But in each of those cases the appellants moved for a new trial postverdict in the District Court, and did not seek to establish their entitlement to a new trial solely on the basis of a denied Rule 50(a) motion. See Cone, supra, at 213 (noting that respondent moved for a new trial);5 Globe Liquor, 332 U.S., at 572 ("The respondents ... moved for a new trial on the ground ... that there were many contested issues of fact"). Indeed, Johnson concluded that respondent was only entitled to a new trial by virtue of its motion for such "within the time required by Rule 50(b)." 344 U.S., at 54. Accordingly, these outcomes merely underscore our holding today--a party is not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court. Our determination that respondent's failure to comply with Rule 50(b) forecloses its challenge to the sufficiency of the evidence is further validated by the purported basis of respondent's appeal, namely the District Court's denial of respondent's preverdict Rule 50(a) motion. As an initial matter, Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party's Rule 50(a) motion--namely, its entitlement to judgment as a matter of law--cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Here, respondent does not seek to pursue on appeal the precise claim it raised in its Rule 50(a) motion before the District Court--namely, its entitlement to judgment as a matter of law. Rather, it seeks a new trial based on the legal insufficiency of the evidence. But if, as in Cone, Globe Liquor, and Johnson, a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in its Rule 50(a) motion--i.e., the entry of judgment--then surely respondent is foreclosed from seeking a new trial, relief it did not and could not seek in its preverdict motion. In short, respondent never sought a new trial before the District Court, and thus forfeited its right to do so on appeal. Yakus v. United States, 321 U.S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a ... right may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"). The text of Rule 50(b) confirms that respondent's preverdict Rule 50(a) motion did not present the District Court with the option of ordering a new trial. That text provides that a district court may only order a new trial on the basis of issues raised in a preverdict Rule 50(a) motion when "ruling on a renewed motion" under Rule 50(b). Accordingly, even if the District Court was inclined to grant a new trial on the basis of arguments raised in respondent's preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to that Rule. Consequently, the Court of Appeals was similarly powerless. Similarly, the text and application of Rule 50(a) support our determination that respondent may not challenge the sufficiency of the evidence on appeal on the basis of the District Court's denial of its Rule 50(a) motion. The Rule provides that "the court may determine" that "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a given] issue," and "may grant a motion for judgment as a matter of law against that party ...." (Emphasis added.) Thus, while a district court is permitted to enter judgment as a matter of law when it concludes that the evidence is legally insufficient, it is not required to do so. To the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather than granting such motions. As Wright and Miller explain: "Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court's appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion." 9A Federal Practice §2533, at 319 (footnote omitted). Thus, the District Court's denial of respondent's preverdict motion cannot form the basis of respondent's appeal, because the denial of that motion was not error. It was merely an exercise of the District Court's discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel's failure to file a postverdict motion pursuant to Rule 50(b).6 *  *  * For the foregoing reasons, we hold that since respondent failed to renew its preverdict motion as specified in Rule 50(b), there was no basis for review of respondent's sufficiency of the evidence challenge in the Court of Appeals. The judgment of the Court of Appeals is reversed.7 It is so ordered. UNITHERM FOOD SYSTEMS, INC., PETITIONER v.SWIFT-ECKRICH, INC., dba CONAGRAREFRIGERATED FOODS on writ of certiorari to the united states court ofappeals for the federal circuit [January 23, 2006] Justice Stevens, with whom Justice Kennedy joins, dissenting. Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder. For that reason Congress has preserved the federal appeals courts' power to correct plain error, even though trial counsel's omission will ordinarily give rise to a binding waiver. This is not a case, in my view, in which the authority of the appellate court is limited by an explicit statute or controlling rule. The spirit of the Federal Rules of Civil Procedure favors preservation of a court's power to avoid manifestly unjust results in exceptional cases. See Johnson v. New York, N. H. & H. R. Co., 344 U.S. 48, 62 (1952) (Frankfurter, J., dissenting) ("'Procedure is the means; full, equal and exact enforcement of substantive law is the end'" (quoting Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909))). Moreover, we have an overriding duty to obey statutory commands that unambiguously express the intent of Congress even in areas such as procedure in which we may have special expertise. Today, relying primarily on a case decided in March 1947, Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, and a case decided in January 1948, Globe Liquor Co. v. San Roman, 332 U.S. 571, the Court holds that the Court of Appeals was "powerless" to review the sufficiency of the evidence supporting the verdict in petitioner's favor because respondent failed to file proper postverdict motions pursuant to Rules 50(b) and 59 of the Federal Rules of Civil Procedure in the trial court. Ante, at 10. The majority's holding is inconsistent with a statute enacted just months after Globe Liquor was decided. That statute, which remains in effect today, provides: "The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." 28 U.S.C. §2106. Nothing in Rule 50(b) limits this statutory grant of power to appellate courts; while a party's failure to make a Rule 50(b) motion precludes the district court from directing a verdict in that party's favor, the Rule does not purport to strip the courts of appeals of the authority to review district court judgments or to order such relief as "may be just under the circumstances." Nor do general principles of waiver or forfeiture have that effect. Cf. ante, at 9-10. It is well settled that a litigant's waiver or forfeiture of an argument does not, in the absence of a contrary statutory command, preclude the courts of appeals from considering those arguments. See Singleton v. Wulff, 428 U.S. 106, 121 (1976). Arguments raised for the first time on appeal may be entertained, for example, if their consideration would prevent manifest injustice. Ibid.** For the reasons articulated by the Court in Cone, 330 U.S., at 216, it may be unfair or even an abuse of discretion for a court of appeals to direct a verdict in favor of the party that lost below if that party failed to make a timely Rule 50(b) motion. Likewise, it may not be "just under the circumstances" for a court of appeals to order a new trial in the absence of a proper Rule 59 motion. Finally, a court of appeals has discretion to rebuff, on grounds of waiver or forfeiture, a challenge to the sufficiency of the evidence absent a proper Rule 50(b) or Rule 59 motion made in the district court. None of the foregoing propositions rests, however, on a determination that the courts of appeals lack "power" to review the sufficiency of the evidence and order appropriate relief under these circumstances, and I can divine no basis for that determination. I respectfully dissent. FOOTNOTESFootnote 1Petitioner contends that respondent's Rule 50(a) motion pertained only to the fraud element of petitioner's Walker Process claim, and that it did not encompass the remaining antitrust elements of that claim. Because we conclude that petitioner is entitled to prevail irrespective of the scope of respondent's Rule 50(a) motion, we assume without deciding that that motion pertained to all aspects of petitioner's §2 claim. But see Amendments to Federal Rules of Civil Procedure, 134 F.R.D. 525, 687 (1991) ("A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion"). Footnote 2While ConAgra did file a postverdict motion seeking a new trial on antitrust damages, that motion did not seek to challenge the sufficiency of the evidence establishing antitrust liability and thus has no bearing on the instant case. Footnote 3Neither Neely v. Martin K. Eby Constr. Co., 386 U.S. 317 (1967), nor Weisgram v. Marley Co., 528 U.S. 440 (2000), undermine our judgment about the benefit of postverdict input from the district court. In those cases this Court determined that an appellate court may, in certain circumstances, direct the entry of judgment when it reverses the district court's denial of a Rule 50(b) motion. But in such circumstances the district court will have had an opportunity to consider the propriety of entering judgment or ordering a new trial by virtue of the postverdict motion. Moreover, these cases reiterate the value of the district court's input, cautioning the courts of appeals to be "'constantly alert' to 'the trial judge's first-hand knowledge of witnesses, testimony, and issues.'" Id., at 443 (quoting Neely, supra, at 325). Footnote 4The dissent's suggestion that 28 U.S.C. §2106 permits the Courts of Appeals to consider the sufficiency of the evidence underlying a civil jury verdict notwithstanding a party's failure to comply with Rule 50 is foreclosed by authority of this Court. While the dissent observes that §2106 was enacted after Cone and Globe Liquor Co. v. San Roman, 332 U.S. 571 (1948), post, at 2 (opinion of Stevens, J.), it fails to note that it was enacted prior to Johnson. Johnson explicitly reaffirmed those earlier cases, concluding that "in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict [Rule 50] forbids the trial judge or an appellate court to enter such judgment." 344 U.S., at 50. Moreover, in Neely, this Court observed that §2106 is "broad enough to include the power to direct entry of judgment n.o.v. on appeal," 386 U.S., at 322, but nonetheless reaffirmed that Cone, Globe Liquor, and Johnson "make it clear that an appellate court may not order judgment n.o.v. where the verdict loser has failed to strictly comply with the procedural requirements of Rule 50(b)." 386 U.S., at 325. Contrary to the dissent's suggestion, Neely confirms that the broad grant of authority to the Courts of Appeals in §2106 must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court. The dissent's approach is not only foreclosed by authority of this Court, it also may present Seventh Amendment concerns. The implication of the dissent's interpretation of §2106 is that a court of appeals would be free to examine the sufficiency of the evidence regardless of whether the appellant had filed a Rule 50(a) motion in the district court and, in the event the appellant had filed a Rule 50(a) motion, regardless of whether the district court had ever ruled on that motion. The former is squarely foreclosed by Slocum v. New York Life Ins. Co., 228 U.S. 364 (1913), and the latter is inconsistent with this Court's explanation of the requirements of the Seventh Amendment in Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 658 (1935) (explaining that "under the pertinent rules of the common law the court of appeals could set aside the verdict for error of law, such as the trial court's ruling respecting the sufficiency of the evidence, and direct a new trial, but could not itself determine the issues of fact and direct a judgment for the defendant, for this would cut off the plaintiff's unwaived right to have the issues of fact determined by a jury" (emphasis added)). Indeed, Rule 50 was drafted with such concerns in mind. See 9A C. Wright & A. Miller, Federal Practice and Procedure §2522, pp. 244-246 (2d ed. 1995) (hereinafter Federal Practice). Footnote 5While the precise nature of the new trial motion at issue in Cone is difficult to ascertain from this Court's description of that motion, the Court of Appeals opinion in that case confirms that the movant had properly objected to the admission of certain evidence, and then moved postverdict "for a new trial [on the basis of the inadmissible evidence] and later renewed this motion upon the basis of newly-discovered evidence." West Virginia Pulp & Paper Co. v. Cone, 153 F.2d 576, 580 (CA4 1946). This Court did not disturb the Court of Appeals holding that formed the basis of the movant's entitlement to a new trial, namely "the Circuit Court of Appeals' holding that there was prejudicial error in the admission of evidence." 330 U.S., at 215. Footnote 6Respondent claims that its failure to renew its Rule 50(a) motion was in reliance on the Tenth Circuit's determination that it could order a new trial in the absence of a Rule 50(b) motion. But respondent cannot credibly maintain that it wanted the Court of Appeals to order a new trial as opposed to entering judgment. And, as the Tenth Circuit has recognized, respondent could not obtain the entry of judgment unless it complied with Rule 50(b). Cummings v. General Motors Corp., 365 F.3d 944, 951 (2004). Respondent therefore had every incentive to comply with that Rule's requirements. Accordingly, we reject its contention that our application of Rule 50(b) to the instant case is impermissibly retroactive. See also Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993) ("[W]e can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties' claims of actual reliance on an old rule and of harm from a retroactive application of the new rule" (internal quotation marks and brackets omitted)). Footnote 7We reject respondent's contention that it is entitled to a remand for reconsideration in light of Phillips v. AWH Corp., 415 F.3d 1303 (CA Fed. 2005). The Federal Circuit has already denied respondent's petition for rehearing raising this issue. FOOTNOTESFootnote **The Court suggests that the Seventh Amendment limits appellate courts' power to review judgments under 28 U.S.C. §2106. See ante, at 7, n.4. I disagree with the Court's analysis in two respects. First, although the right to trial by jury might be implicated if no Rule 50(a) motion had been made, such a motion was made in this case. The Rule 50(a) motion triggered the automatic reservation of "legal questions," Fed. Rule Civ. Proc. 50(b), and that reservation, in turn, averted any Seventh Amendment problem, see Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935). Second, the Seventh Amendment imposes no greater restriction on appellate courts than it does on district courts in these circumstances; "[a]s far as the Seventh Amendment's right to jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgment n. o. v. than when a trial court does." Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 322 (1967).

conservative

other

judicial_power

1988-081-01

United States Supreme Court NEITZKE v. WILLIAMS(1989) No. 87-1882 Argued: February 22, 1989Decided: May 1, 1989 A provision in the federal in forma pauperis statute, 28 U.S.C. 1915(d), authorizes courts to dismiss an in forma pauperis claim if, inter alia, "the action is frivolous or malicious." Respondent Williams, a prison inmate, filed a motion to proceed in forma pauperis and a complaint under 42 U.S.C. 1983 in the District Court, charging that prison officials had violated his Eighth Amendment rights by denying him medical treatment and his Fourteenth Amendment due process rights by transferring him without a hearing to a less desirable cell house when he refused to continue working because of his medical condition. The District Court dismissed the complaint sua sponte as frivolous under 1915(d) on the grounds that Williams had failed to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court of Appeals, holding that the District Court had wrongly equated the standard for failure to state a claim under Rule 12(b)(6) with the more lenient standard for frivolousness under 1915(d), which permits dismissal only if a petitioner cannot make any rational argument in law or fact entitling him to relief, affirmed the dismissal of the Fourteenth Amendment claim on the ground that a prisoner clearly has no constitutionally protected liberty or property interest in being incarcerated in a particular institution or wing. However, the court reversed the dismissal of the Eighth Amendment claim as to two of the five defendants, declaring itself unable to state with certainty that Williams was unable to make any rational argument to support his claim. Held: A complaint filed in forma pauperis is not automatically frivolous within the meaning of 1915(d) because it fails to state a claim under Rule 12(b)(6). The two standards were devised to serve distinctive goals and have separate functions. Under Rule 12(b)(6)'s failure-to-state-a-claim standard - which is designed to streamline litigation by dispensing with needless discovery and factfinding - a court may dismiss a claim based on a dispositive issue of law without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one, whereas under 1915(d)'s frivolousness standard - which is intended to discourage baseless lawsuits - dismissal is proper only if the legal theory (as in Williams' Fourteenth Amendment claim) or the factual contentions lack an arguable basis. The considerable common [490 U.S. 319, 320] ground between the two standards does not mean that one invariably encompasses the other, since, where a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not. This conclusion flows from 1915(d)'s role of replicating the function of screening out inarguable claims from arguably meritorious ones played out in the realm of paid cases by financial considerations. Moreover, it accords with the understanding articulated in other areas of law that not all unsuccessful claims are frivolous. It is also consonant with Congress' goal in enacting the in forma pauperis statute of assuring equality of consideration for all litigants. To conflate these standards would deny indigent plaintiffs the practical protections of Rule 12(b)(6) - notice of a pending motion to dismiss and an opportunity to amend the complaint before the motion is ruled on - which are not provided when complaints are dismissed sua sponte under 1915(d). Pp. 324-331. 837 F.2d 304, affirmed. MARSHALL, J., delivered the opinion for a unanimous Court. Robert S. Spear argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General of Indiana, and David A. Nowak, Deputy Attorney General. George A. Rutherglen, by appointment of the Court, 488 U.S. 939 , argued the cause and filed a brief for respondent. JUSTICE MARSHALL delivered the opinion of the Court. The question presented is whether a complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous within the meaning of 28 U.S.C. 1915(d). The answer, we hold, is no. I On October 27, 1986, respondent Harry Williams, Sr., an inmate in the custody of the Indiana Department of Corrections, filed a complaint under 42 U.S.C. 1983 in the United States District Court for the Southern District of Indiana, naming five Indiana correctional officials as defendants. App. 38. The complaint alleged that, while at the Indiana State Prison, Williams had been diagnosed by a prison doctor [490 U.S. 319, 321] as having a small brain tumor which affected his equilibrium. Id., at 40. Because of this condition, the doctor placed Williams for one year on "medical idle status." A medical report Williams attached to the complaint stated that "[i]t is very likely that he will have this condition for some time to come." Id., at 48. The complaint further alleged that, when Williams was transferred to the Indiana State Reformatory, he notified the reformatory staff about the tumor and about the doctor's recommendation that he not participate in any prison work program. Id., at 41. Despite this notification, reformatory doctors refused to treat the tumor, id., at 40-41, and reformatory officials assigned Williams to do garment manufacturing work, id., at 42. After Williams' equilibrium problems worsened and he refused to continue working, the reformatory disciplinary board responded by transferring him to a less desirable cell house. Id., at 42-43. The complaint charged that by denying medical treatment, the reformatory officials had violated Williams' rights under the Eighth Amendment, and by transferring him without a hearing, they had violated his rights under the Due Process Clause of the Fourteenth Amendment. Id., at 44. The complaint sought money damages and declaratory and injunctive relief. Id., at 45-46. Along with the complaint, Williams filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. 1915(a), stating that he had no assets and only prison income. App. 36-37. The District Court dismissed the complaint sua sponte as frivolous under 28 U.S.C. 1915(d) on the grounds that Williams had failed to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). Insofar as Williams claimed deficient medical care, his pleadings did not state a claim of "deliberate indifference to [his] serious medical needs," as prisoners' Eighth Amendment claims must under Estelle v. Gamble, 429 U.S. 97, 104 (1976), but instead described a constitutionally noncognizable [490 U.S. 319, 322] instance of medical malpractice. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 67. Insofar as Williams protested his transfer without a hearing, his pleadings failed to state a due process violation, for a prisoner has no constitutionally protected liberty or property interest in being incarcerated in a particular institution or a particular wing. Id., at 26. The court gave no other reasons for finding the complaint frivolous. On Williams' ensuing motion to vacate the judgment and amend his pleadings, the District Court reached these same conclusions. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Mar. 11, 1987), reprinted at App. 29. 1 The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. Williams v. Faulkner, 837 F.2d 304 (1988). In its view, the District Court had wrongly equated the standard for failure to state a claim under Rule 12(b)(6) with the standard for frivolousness under 1915(d). The frivolousness standard, authorizing sua sponte dismissal of an in forma pauperis complaint "only if the petitioner cannot [490 U.S. 319, 323] make any rational argument in law or fact which would entitle him or her to relief," is a "more lenient" standard than that of Rule 12(b)(6), the court stated. 837 F.2d, at 307. Unless there is "`indisputably absent any factual or legal basis'" for the wrong asserted in the complaint, the trial court, "[i]n a close case," should permit the claim to proceed at least to the point where responsive pleadings are required. Ibid. (citation omitted). Evaluated under this frivolousness standard, the Court of Appeals held, Williams' Eighth Amendment claims against two of the defendants had been wrongly dismissed. Although the complaint failed to allege the level of deliberate indifference necessary to survive a motion to dismiss under Rule 12(b)(6), at this stage of the proceedings, the court stated, "we cannot state with certainty that Williams is unable to make any rational argument in law or fact to support his claim for relief" against these defendants. 837 F.2d, at 308. Accordingly, the Court of Appeals reversed and remanded these claims to the District Court. 2 The Court of Appeals affirmed the dismissal of Williams' due process claims as frivolous, however. Because the law is clear that prisoners have no constitutionally protected liberty interest in remaining in a particular wing of a prison, the court stated, [490 U.S. 319, 324] Williams could make no rational argument in law or fact that his transfer violated due process. Id., at 308-309. We granted the petition for a writ of certiorari, 488 U.S. 816 (1988), filed by those defendants against whom Williams' claims still stand to decide whether a complaint that fails to state a claim under Rule 12(b)(6) is necessarily frivolous within the meaning of 1915(d), a question over which the Courts of Appeals have disagreed. 3 We now affirm. II The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342 -343 (1948). Toward this end, 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. See Franklin v. Murphy, 745 F.2d 1221, 1226 (CA9 1984). The brevity of 1915(d) and the generality of its terms have left the judiciary with the not inconsiderable tasks of [490 U.S. 319, 325] fashioning the procedures by which the statute operates and of giving content to 1915(d)'s indefinite adjectives. 4 Articulating the proper contours of the 1915(d) term "frivolous," which neither the statute nor the accompanying congressional reports defines, presents one such task. The Courts of Appeals have, quite correctly in our view, generally adopted as formulae for evaluating frivolousness under 1915(d) close variants of the definition of legal frivolousness which we articulated in the Sixth Amendment case of Anders v. California, 386 U.S. 738 (1967). There, we stated that an appeal on a matter of law is frivolous where "[none] of the legal points [are] arguable on their merits." Id., at 744. By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. As the Courts of Appeals have recognized, 1915(d)'s term "frivolous," when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation. 5 Where the appellate courts have diverged, however, is on the question whether a complaint which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) automatically satisfies this frivolousness standard. The petitioning prison officials urge us to adopt such a per se reading, primarily on the policy ground that such a reading will halt the "flood of frivolous litigation" generated by prisoners that has swept over the federal judiciary. Brief for Petitioners 7. In support of this position, petitioners note the large and growing [490 U.S. 319, 326] number of prisoner civil rights complaints, the burden which disposing of meritless complaints imposes on efficient judicial administration, and the need to discourage prisoners from filing frivolous complaints as a means of gaining a "`short sabbatical in the nearest federal courthouse.'" Id., at 6, quoting Cruz v. Beto, 405 U.S. 319, 327 (1972) (REHNQUIST, J., dissenting). Because a complaint which states no claim "must be dismissed pursuant to Rule 12(b)(6) anyway," petitioners assert, "delay[ing] this determination until after service of process and a defendant's response only delays the inevitable." Reply Brief for Petitioners 3. We recognize the problems in judicial administration caused by the surfeit of meritless in forma pauperis complaints in the federal courts, not the least of which is the possibility that meritorious complaints will receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints. See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 611 (1979). Nevertheless, our role in appraising petitioners' reading of 1915(d) is not to make policy, but to interpret a statute. Taking this approach, it is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and the frivolousness standard of 1915(d) were devised to serve distinctive goals, and that while the overlap between these two standards is considerable, it does not follow that a complaint which falls afoul of the former standard will invariably fall afoul of the latter. Appealing though petitioners' proposal may appear as a broadbrush means of pruning meritless complaints from the federal docket, as a matter of statutory construction it is untenable. Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45 -46 (1957). This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines [490 U.S. 319, 327] litigation by dispensing with needless discovery and factfinding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon, supra, at 73, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations. District court judges looking to dismiss claims on such grounds must look elsewhere for legal support. 6 Section 1915(d) has a separate function, one which molds rather differently the power to dismiss which it confers. Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e. g., Williams v. Goldsmith, 701 F.2d 603 (CA7 1983), and claims of infringement of a legal interest which clearly does not exist, like respondent Williams' claim that his transfer within the reformatory violated his rights under the Due [490 U.S. 319, 328] Process Clause. Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar. To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and 1915(d) both counsel dismissal. 7 But the considerable common ground between these standards does not mean that the one invariably encompasses the other. When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not. This conclusion follows naturally from 1915(d)'s role of replicating the function of screening out inarguable claims which is played in the realm of paid cases by financial considerations. The cost of bringing suit and the fear of financial sanctions doubtless deter most inarguable paid claims, but such deterrence presumably screens out far less frequently those arguably meritorious legal theories whose ultimate failure is not apparent at the outset. Close questions of federal law, including claims filed pursuant to 42 U.S.C. 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court's granting review, under its certiorari jurisdiction, to resolve them. See, e. g., Estelle v. Gamble, 429 U.S. 97 (1976); McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Jones v. Alfred Mayer Co., 392 U.S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous [490 U.S. 319, 329] is to distort measurably the meaning of frivolousness both in common and legal parlance. Indeed, we recently reviewed the dismissal under Rule 12(b)(6) of a complaint based on 42 U.S.C. 1983 and found by a 9-to-0 vote that it had, in fact, stated a cognizable claim - a powerful illustration that a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit. See Brower v. County of Inyo, 489 U.S. 593 (1989). That frivolousness in the 1915(d) context refers to a more limited set of claims than does Rule 12(b)(6) accords, moreover, with the understanding articulated in other areas of law that not all unsuccessful claims are frivolous. See, e. g., Penson v. Ohio, 488 U.S. 75 (1988) (criminal defendant has right to appellate counsel even if his claims are ultimately unavailing so long as they are not frivolous); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) (attorney's fees may not be assessed against a plaintiff who fails to state a claim under 42 U.S.C. 1988 or under Title VII of the Civil Rights Act of 1964 unless his complaint is frivolous); Hagans v. Lavine, 415 U.S. 528, 536 -537 (1974) (complaint that fails to state a claim may not be dismissed for want of subject-matter jurisdiction unless it is frivolous). Our conclusion today is consonant with Congress' overarching goal in enacting the in forma pauperis statute: "to assure equality of consideration for all litigants." Coppedge v. United States, 369 U.S. 438, 447 (1962); see also H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. 8 These procedures alert him to the legal theory underlying the defendant's challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations [490 U.S. 319, 330] so as to conform with the requirements of a valid legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case. Brandon v. District of Columbia Board of Parole, 236 U.S. App. D.C. 155, 158, 734 F.2d 56, 59 (1984), cert. denied, 469 U.S. 1127 (1985). By contrast, the sua sponte dismissals permitted by, and frequently employed under, 1915(d), necessary though they may sometimes be to shield defendants from vexatious lawsuits, involve no such procedural protections. To conflate the standards of frivolousness and failure to state a claim, as petitioners urge, would thus deny indigent plaintiffs the practical protections against unwarranted dismissal generally accorded paying plaintiffs under the Federal Rules. A complaint like that filed by Williams under the Eighth Amendment, whose only defect was its failure to state a claim, will in all likelihood be dismissed sua sponte, whereas an identical complaint filed by a paying plaintiff will in all likelihood receive the considerable benefits of the adversary proceedings contemplated by the Federal Rules. Given Congress' goal of putting indigent plaintiffs on a similar footing with paying plaintiffs, petitioners' interpretation cannot reasonably be sustained. According opportunities for responsive pleadings to indigent litigants commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more important because indigent plaintiffs so often proceed pro se and therefore may be less capable of formulating legally competent initial pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972). 9 [490 U.S. 319, 331] We therefore hold that a complaint filed in forma pauperis is not automatically frivolous within the meaning of 1915(d) because it fails to state a claim. The judgment of the Court of Appeals is accordingly Affirmed. Footnotes [Footnote 1 Both in its initial ruling and upon the motion to vacate and amend, the District Court also denied Williams leave to proceed in forma pauperis. It based this denial exclusively on its finding of frivolousness, stating that Williams had presumptively satisfied 1915's poverty requirement. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 22. In so ruling, the District Court adhered to precedent in the Court of Appeals for the Seventh Circuit to the effect that, if a district court finds a complaint frivolous or malicious, it should not only dismiss the complaint but also retroactively deny the accompanying motion to proceed in forma pauperis under 1915, regardless of the plaintiff's financial status. See Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, Wis., 510 F.2d 130, 134 (1975). Other Circuits, however, treat the decision whether to grant leave to file in forma pauperis as a threshold inquiry based exclusively on the movant's poverty. See, e. g., Franklin v. Murphy, 745 F.2d 1221, 1226-1227, n. 5 (CA9 1984); Boyce v. Alizaduh, 595 F.2d 948, 950-951 (CA4 1979). Because our review is confined to the question whether the complaint in this case is frivolous within the meaning of 1915(d), we have no occasion to consider the propriety of these varying applications of the statute. [Footnote 2 The two defendants against whom the Eighth Amendment claims were reinstated were Han Chul Choi, a reformatory doctor whom Williams alleged had refused to treat the brain tumor, and Dean Neitzke, who as administrator of the reformatory infirmary was presumptively responsible for ensuring that Williams received adequate medical care. Williams v. Faulkner, 837 F.2d 304, 308 (CA7 1988). The Court of Appeals held that Williams' complaint had alleged no personal involvement on the part of the remaining three defendants in his medical treatment, and that these defendants' prison jobs did not justify an "inference of personal involvement in the alleged deprivation of medical care." Ibid. Because Williams could thus make no rational argument to support his claims for relief against these officials, the Court of Appeals stated, the District Court had appropriately dismissed those claims as frivolous. Ibid. [Footnote 3 Compare Brandon v. District of Columbia Board of Parole, 236 U.S. App. D.C. 155, 159, 734 F.2d 56, 59 (1984), cert. denied, 469 U.S. 1127 (1985), with Harris v. Menendez, 817 F.2d 737, 740 (CA11 1987); Spears v. McCotter, 766 F.2d 179, 182 (CA5 1985); Franklin, supra, at 1227; Malone v. Colyer, 710 F.2d 258, 261 (CA6 1983). [Footnote 4 See, e. g., Catz & Guyer, Federal In Forma Pauperis Litigation: In Search of Judicial Standards, 31 Rutgers L. Rev. 655 (1978); Feldman, Indigents in the Federal Courts: The In Forma Pauperis Statute - Equality and Frivolity, 54 Ford. L. Rev. 413 (1985). [Footnote 5 See, e. g., Payne v. Lynaugh, 843 F.2d 177, 178 (CA5 1988); Franklin, 745 F.2d, at 1227-1228; Johnson v. Silvers, 742 F.2d 823, 824 (CA4 1984); Brandon, supra, at 159, 734 F.2d, at 59; Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d 812, 815 (CA10 1981), cert. denied, 459 U.S. 840 (1982). [Footnote 6 A patently insubstantial complaint may be dismissed, for example, for want of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See, e. g., Hagans v. Lavine, 415 U.S. 528, 536 -537 (1974) (federal courts lack power to entertain claims that are "`so attenuated and unsubstantial as to be absolutely devoid of merit'") (citation omitted); Bell v. Hood, 327 U.S. 678, 682 -683 (1946). [Footnote 7 At argument, Williams' counsel estimated that many, if not most, prisoner complaints which fail to state a claim also fall afoul of 1915's strictures, Tr. of Oral Arg. 27, an estimate with which our experience does not incline us to take issue. [Footnote 8 We have no occasion to pass judgment, however, on the permissible scope, if any, of sua sponte dismissals under Rule 12(b)(6). [Footnote 9 Petitioners' related suggestion that, as a practical matter, the liberal pleading standard applied to pro se plaintiffs under Haines provides ample protection misses the mark for two reasons. First, it is possible for a plaintiff to file in forma pauperis while represented by counsel. See, e. g., Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331 (1948). Second, the liberal pleading standard of Haines applies only to a plaintiff's [490 U.S. 319, 331] factual allegations. Responsive pleadings thus may be necessary for a pro se plaintiff to clarify his legal theories. [490 U.S. 319, 332]

liberal

person

civil_rights

2005-047-01

United States Supreme Court DAY v. McDONOUGH, INTERIM SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS(2006) No. 04-1324 Argued: February 27, 2006Decided: April 25, 2006 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets a one-year limitation period for filing a state prisoner's federal habeas corpus petition, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. §2244(d)(1)(A), but stops the one-year clock while the petitioner's "properly filed" application for state postconviction relief "is pending," §2244(d)(2). Under Eleventh Circuit precedent, which is not challenged here, that tolling period does not include the 90 days in which a petitioner might have sought certiorari review in this Court challenging state-court denial of postconviction relief. Petitioner Day's Florida trial-court sentence was affirmed on December 21, 1999, and his time to seek this Court's review of the final state-court decision expired on March 20, 2000. Day unsuccessfully sought state postconviction relief 353 days later. The trial court's judgment was affirmed on appeal, effective December 3, 2002. Day petitioned for federal habeas relief 36 days later, on January 8, 2003. Florida's answer asserted that the petition was "timely" because it was filed after 352 days of untolled time. Inspecting the answer and attachments, however, a Federal Magistrate Judge determined that the State had miscalculated the tolling time: Under the controlling Eleventh Circuit precedent, the untolled time was actually 388 days, rendering the petition untimely. After affording Day an opportunity to show cause why the petition should not be dismissed for failure to meet AEDPA's one-year deadline, the Magistrate Judge found petitioner's responses inadequate and recommended dismissal. The District Court adopted the recommendation, and the Eleventh Circuit affirmed, concluding that a State's patently erroneous concession of timeliness does not compromise a district court's authority suasponte to dismiss a habeas petition as untimely. Held:In the circumstances here presented, the District Court had discretion to correct the State's erroneous computation and, accordingly, to dismiss the habeas petition as untimely under AEDPA's one-year limitation. Pp.2-11. (a)A statute of limitations defense is not jurisdictional, therefore courts are under no obligation to raise the matter suasponte. Cf. Kontrick v. Ryan, 540 U.S. 443, 458. As a general matter, a defendant forfeits a statute of limitations defense not asserted in its answer or in an amendment thereto. See Federal Rules of Civil Procedure 8(c), 12(b), and 15(a) (made applicable to federal habeas proceedings by Rule 11 of the Rules governing such proceedings). And the Court would count it an abuse of discretion to override a State's deliberate waiver of the limitations defense. But, in appropriate circumstances, a district court may raise a time bar on its own initiative. The District Court in this case confronted no intelligent waiver on the State's part, only an evident miscalculation of time. In this situation the Court declines to adopt either an inflexible rule requiring dismissal whenever AEDPA's one-year clock has run, or, at the opposite extreme, a rule treating the State's failure initially to plead the one-year bar as an absolute waiver. Rather, the Court holds that a district court has discretion to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition. This resolution aligns the statute of limitations with other affirmative defenses to habeas petitions, notably exhaustion of state remedies, procedural default, and nonretroactivity. In Granberry v. Greer, 481 U.S. 129, 133, this Court held that federal appellate courts have discretion to consider a state prisoner's failure to exhaust available state remedies before invoking federal habeas jurisdiction despite the State's failure to interpose the exhaustion defense at the district-court level. Similarly, in Caspari v. Bohlen, 510 U.S. 383, 389, the Court held that "a federal court may, but need not, decline to apply [the nonretroactivity rule announced in Teague v. Lane, 489 U.S. 288, 310,] if the State does not argue it." It would make scant sense to distinguish AEDPA's time bar from these other threshold constraints on federal habeas petitioners. While a district court is not required to double-check the State's math, cf. Pliler v. Ford, 542 U.S. 225, 231, no Rule, statute, or constitutional provision commands a judge who detects a clear computation error to suppress that knowledge. Cf. Fed. Rule Civ. Proc. 60(a). The Court notes particularly that the Magistrate Judge, instead of acting suasponte, might have informed the State of its obvious computation error and entertained an amendment to the State's answer. See, e.g., Fed. Rule Civ. Proc. 15(a). There is no dispositive difference between that route, and the one taken here. Pp.2-10. (b)Before acting suasponte, a court must accord the parties fair notice and an opportunity to present their positions. It must also assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and "determine whether the interests of justice would be better served" by addressing the merits or by dismissing the petition as time barred. See Granberry, 481 U.S., at 136. Here, the Magistrate Judge gave Day due notice and a fair opportunity to show why the limitation period should not yield dismissal. The notice issued some nine months after the State's answer. No court proceedings or action occurred in the interim, and nothing suggests that the State "strategically" withheld the defense or chose to relinquish it. From all that appears in the record, there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent, and no abuse of discretion in following Granberry and Caspari. P.11. 391 F.3d 1192, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., filed an opinion dissenting from the judgment, in which Breyer, J., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Breyer, JJ., joined. PATRICK DAY, PETITIONER v. JAMES R.McDONOUGH, INTERIM SECRETARY,FLORIDA DEPARTMENT OFCORRECTIONS on writ of certiorari to the united states court ofappeals for the eleventh circuit [April 25, 2006] Justice Ginsburg delivered the opinion of the Court. This case concerns the authority of a U.S. District Court, on its own initiative, to dismiss as untimely a state prisoner's petition for a writ of habeas corpus. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, sets a one-year limitation period for filing such petitions, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. §2244(d)(1)(A). The one-year clock is stopped, however, during the time the petitioner's "properly filed" application for state postconviction relief "is pending." §2244(d)(2). Under Eleventh Circuit precedent, that tolling period does not include the 90 days in which a petitioner might have sought certiorari review in this Court challenging state-court denial of postconviction relief. Coates v. Byrd, 211 F.3d 1225, 1227 (2000). In the case before us, the State's answer to the federal habeas petition "agree[d] the petition [was] timely" because it was "filed after 352 days of untolled time." App. 24. Inspecting the pleadings and attachments, a Federal Magistrate Judge determined that the State had miscalculated the tolling time. Under Circuit precedent, the untolled time was 388 days, rendering the petition untimely by some three weeks. After affording the petitioner an opportunity to show cause why the petition should not be dismissed for failure to meet the statutory deadline, and finding petitioner's responses inadequate, the Magistrate Judge recommended dismissal of the petition. The District Court adopted the Magistrate Judge's recommendation, and the Court of Appeals affirmed, concluding that "[a] concession of timeliness by the state that is patently erroneous does not compromise the authority of a district court suasponte to dismiss a habeas petition as untimely, under AEDPA." Day v. Crosby, 391 F.3d 1192, 1195 (CA11 2004). The question presented is whether a federal court lacks authority, on its own initiative, to dismiss a habeas petition as untimely, once the State has answered the petition without contesting its timeliness. Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense. In this case, however, the federal court confronted no intelligent waiver on the State's part, only an evident miscalculation of the elapsed time under a statute designed to impose a tight time constraint on federal habeas petitioners.1 In the circumstances here presented, we hold, the federal court had discretion to correct the State's error and, accordingly, to dismiss the petition as untimely under AEDPA's one-year limitation. I Petitioner Patrick A. Day was convicted of second-degree murder and sentenced to 55 years in prison by a Florida trial court. Day unsuccessfully appealed the sentence, which was affirmed on December 21, 1999. Day did not seek this Court's review of the final state-court decision; his time to do so expired on March 20, 2000. Three hundred and fifty-three (353) days later, Day unsuccessfully sought state postconviction relief. The Florida trial court's judgment denying relief was affirmed on appeal, and the appellate court issued its mandate on December 3, 2002. See Nyland v. Moore, 216 F.3d 1264, 1267 (CA11 2000) (under Florida law, appellate order "is pending" until the mandate issues). Thirty-six (36) days thereafter, on January 8, 2003, Day petitioned for federal habeas relief asserting several claims of ineffective assistance of trial counsel. A Magistrate Judge, finding the petition "in proper form," App. 21, ordered the State to file an answer, id., at 21-22. In its responsive pleading, the State failed to raise AEDPA's one-year limitation as a defense. See supra, at 2. Overlooking controlling Eleventh Circuit precedent, see Coates, 211 F.3d, at 1227, the State calculated that the petition had been "filed after 352 days of untolled time," and was therefore "timely." App. 24. The State's answer and attachments, however, revealed that, had the State followed the Eleventh Circuit's instruction on computation of elapsed time, the timeliness concession would not have been made: Under the Circuit's precedent, more than one year, specifically, 388 days of untolled time, had passed between the finality of Day's state-court conviction and the filing of his federal habeas petition.2 A newly assigned Magistrate Judge noticed the State's computation error and ordered Day to show cause why his federal habeas petition should not be dismissed as untimely. Id., at 26-30. Determining that Day's responses did not overcome the time bar, the Magistrate Judge recommended dismissal of the petition, App. to Pet. for Cert. 8a-15a, and the District Court adopted that recommendation, id., at 7a. The Eleventh Circuit granted Day a certificate of appealability on the question "[w]hether the district court erred in addressing the timeliness of [Day's] habeas corpus petition ... after the [State] had conceded that [the] petition was timely." App. 37. In a decision rendered two years earlier, Jackson v. Secretary for Dept. of Corrections, 292 F.3d 1347 (2002), the Eleventh Circuit had ruled that, "even though the statute of limitations is an affirmative defense, the district court may review suasponte the timeliness of [a federal habeas] petition." Id., at 1349. Adhering to Jackson, and satisfied that the State's concession of timeliness "was patently erroneous," the Eleventh Circuit affirmed the dismissal of Day's petition. 391 F.3d, at 1192-1195.3 We granted certiorari subnom. Day v. Crosby, 545 U.S. __ (2005), in view of the division among the Circuits on the question whether a district court may dismiss a federal habeas petition as untimely under AEDPA, despite the State's failure to raise the one-year limitation in its answer to the petition or its erroneous concession of the timeliness issue. Compare, e.g., Long v. Wilson, 393 F.3d 390, 401-404 (CA3 2004), and 391 F.3d, at 1194-1195 (case below), with Scott v. Collins, 286 F.3d 923, 930-931 (CA6 2002), and Nardi v. Stewart, 354 F.3d 1134, 1141-1142 (CA9 2004). II A statute of limitations defense, the State acknowledges, is not "jurisdictional," hence courts are under no obligation to raise the time bar suasponte. See, e.g., Acosta v. Artuz, 221 F.3d 117, 122 (CA2 2000); Hill v. Braxton, 277 F. 3d 701, 705 (CA4 2002); Davis v. Johnson, 158 F. 3d 806, 810 (CA5 1998); cf. Kontrick v. Ryan, 540 U.S. 443, 458 (2004) (defendant forfeited untimeliness argument "by failing to raise the issue until after [the] complaint was adjudicated on the merits"). In this respect, the limitations defense resembles other threshold barriers--exhaustion of state remedies, procedural default, nonretroactivity--courts have typed "nonjurisdictional," although recognizing that those defenses "implicat[e] values beyond the concerns of the parties." Acosta, 221 F.3d, at 123 ("The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time."). On the exhaustion of state remedies doctrine, requiring state prisoners, before invoking federal habeas jurisdiction, to pursue remedies available in state court, Granberry v. Greer, 481 U.S. 129 (1987), is the pathmarking case. We held in Granberry that federal appellate courts have discretion to consider the issue of exhaustion despite the State's failure to interpose the defense at the district-court level. Id., at 133.4 Later, in Caspari v. Bohlen, 510 U.S. 383, 389 (1994), we similarly held that "a federal court may, but need not, decline to apply [the nonretroactivity rule announced in Teague v. Lane, 489 U.S. 288, 310 (1989),] if the State does not argue it." See also Schiro v. Farley, 510 U.S. 222, 229 (1994) (declining to address nonretroactivity defense that State raised only in Supreme Court merits brief, "[a]lthough we undoubtedly have the discretion to reach" the argument). While the issue remains open in this Court, see Trest v. Cain, 522 U.S. 87, 90 (1997),5 the Courts of Appeals have unanimously held that, in appropriate circumstances, courts, on their own initiative, may raise a petitioner's procedural default, i.e., a petitioner's failure properly to present an alleged constitutional error in state court, and the consequent adequacy and independence of state-law grounds for the state-court judgment. See Brewer v. Marshall, 119 F.3d 993, 999 (CA1 1997); Rosario v. United States, 164 F.3d 729, 732 (CA2 1998); Sweger v. Chesney, 294 F. 3d 506, 520 (CA3 2002); Yeatts v. Angelone, 166 F.3d 255, 261 (CA4 1999); Magouirk v. Phillips, 144 F. 3d 348, 358 (CA5 1998); Sowell v. Bradshaw, 372 F. 3d 821, 830 (CA6 2004); Kurzawa v. Jordan, 146 F.3d 435, 440 (CA7 1998); King v. Kemna, 266 F. 3d 816, 822 (CA8 2001) (en banc); Vang v. Nevada, 329 F. 3d 1069, 1073 (CA9 2003); United States v. Wiseman, 297 F.3d 975, 979 (CA10 2002); Moon v. Head, 285 F.3d 1301, 1315, n.17 (CA11 2002). Petitioner Day relies heavily on Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules), i.e., the procedural Rules governing federal habeas petitions from state prisoners, in urging that AEDPA's limitation may be raised by a federal court suasponte only at the preanswer, initial screening stage. Habeas Rule 4 provides that district courts "must promptly examine" state prisoner habeas petitions and must dismiss the petition "[i]f it plainly appears ... that the petitioner is not entitled to relief." Once an answer has been ordered and filed, Day maintains, the court loses authority to rule the petition untimely suasponte.6 At that point, according to Day, the Federal Rules of Civil Procedure hold sway. See Habeas Rule 11 ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.").7 Under the Civil Procedure Rules, a defendant forfeits a statute of limitations defense, see Fed. Rule Civ. Proc. 8(c), not asserted in its answer, see Rule 12(b), or an amendment thereto, see Rule 15(a). The State, on the other hand, points out that the statute of limitations is akin to other affirmative defenses to habeas petitions, notably exhaustion of state remedies, procedural default, and nonretroactivity. Indeed, the statute of limitations is explicitly aligned with those other defenses under the current version of Habeas Rule 5(b), which provides that the State's answer to a habeas petition "must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations." The considerations of comity, finality, and the expeditious handling of habeas proceedings that motivated AEDPA,8 the State maintains, counsel against an excessively rigid or formal approach to the affirmative defenses now listed in Habeas Rule 5. Citing Granberry, 481 U.S., at 131-134, as the instructive case, the State urges express recognition of an "intermediate approach." Brief for Respondent 14 (internal quotation marks omitted); see also id., at 25. In lieu of an inflexible rule requiring dismissal whenever AEDPA's one-year clock has run, or, at the opposite extreme, a rule treating the State's failure initially to plead the one-year bar as an absolute waiver, the State reads the statutes, Rules, and decisions in point to permit the "exercise [of] discretion in each case to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition." Id., at 14. Employing that "intermediate approach" in this particular case, the State argues, the petition should not be deemed timely simply because a government attorney calculated the days in between petitions incorrectly. We agree, noting particularly that the Magistrate Judge, instead of acting suasponte, might have informed the State of its obvious computation error and entertained an amendment to the State's answer. See Fed. Rule Civ. Proc. 15(a) (leave to amend "shall be freely given when justice so requires"); see also 28 U.S.C. §2243 (State's response to habeas petition may be amended by leave of court); cf. Long, 393 F.3d, at 402-404 (District Court raised the statute of limitations suasponte, the State agreed with that disposition, and the Court of Appeals treated that agreement as a constructive amendment to the State's answer). Recognizing that an amendment to the State's answer might have obviated this controversy,9 we see no dispositive difference between that route, and the one taken here. See Brief for Respondent 24 ("Here, the State did not respond to the show cause order because its concession of timeliness was based on an erroneous calculation and it agreed the petition should be dismissed as untimely."); cf. Slack v. McDaniel, 529 U.S. 473, 487 (2000) (admonishing against interpretation of procedural prescriptions in federal habeas cases to "trap the unwary pro se prisoner" (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982))). In sum, we hold that district courts are permitted, but not obliged, to consider, suasponte, the timeliness of a state prisoner's habeas petition. We so hold, noting that it would make scant sense to distinguish in this regard AEDPA's time bar from other threshold constraints on federal habeas petitioners. See supra, at 6-7; Habeas Rule 5(b) (placing "a statute of limitations" defense on a par with "failure to exhaust state remedies, a procedural bar, [and] non-retroactivity"); Long, 393 F.3d, at 404 ("AEDPA's statute of limitations advances the same concerns as those advanced by the doctrines of exhaustion and procedural default, and must be treated the same."). We stress that a district court is not required to double-check the State's math. If, as this Court has held, "[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants," Pliler v. Ford, 542 U.S. 225, 231 (2004),10 then, by the same token, they surely have no obligation to assist attorneys representing the State. Nevertheless, if a judge does detect a clear computation error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge. Cf. Fed. Rule Civ. Proc. 60(a) (clerical errors in the record "arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party"). Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions. See, e.g., Acosta, 221 F.3d, at 124-125; McMillan v. Jarvis, 332 F.3d 244, 250 (CA4 2003). Further, the court must assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and "determine whether the interests of justice would be better served" by addressing the merits or by dismissing the petition as time barred. See Granberry, 481 U.S., at 136.11 Here, the Magistrate Judge gave Day due notice and a fair opportunity to show why the limitation period should not yield dismissal of the petition. The notice issued some nine months after the State answered the petition. No court proceedings or action occurred in the interim, and nothing in the record suggests that the State "strategically" withheld the defense or chose to relinquish it. From all that appears in the record, there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent, and no abuse of discretion in following this Court's lead in Granberry and Caspari, described supra, at 6-7. *  *  * For the reasons stated, the judgment of the Court of Appeals is Affirmed. PATRICK DAY, PETITIONER v. JAMES R.McDONOUGH, INTERIM SECRETARY,FLORIDA DEPARTMENT OFCORRECTIONS on writ of certiorari to the united states court ofappeals for the eleventh circuit [April 25, 2006] Justice Stevens, with whom Justice Breyer joins, dissenting from the judgment. Although Justice Breyer and I disagree on the proper answer to the question on which we granted certiorari--in my view, Justice Ginsburg's opinion for the Court correctly decides that question, while Justice Breyer has joined Justice Scalia's dissenting opinion--we agree on the proper disposition of this case. In our view, the Court should announce its opinion now, but it should postpone the entry of judgment pending our decision in Lawrence v. Florida, No. 05-8820 (cert. granted, Mar. 27, 2006). As Justice Ginsburg notes, the question whether the Court of Appeals correctly concluded that Day's habeas corpus petition was barred by the statute of limitations will be answered by our decision in Lawrence. See ante, at 4, n.2. It seems improvident to affirm a possibly erroneous Court of Appeals judgment that dismissed Day's habeas petition without an evaluation of its merits when we have already granted certiorari to address the issue on which the Court of Appeals may have erred. Of course, the Court of Appeals may avoid a miscarriage of justice by keeping this case on its docket until after we decide Lawrence, but it would be better practice for us to do so ourselves. Accordingly, we respectfully dissent from the entry of the Court's judgment at this time. PATRICK DAY, PETITIONER v. JAMES R.McDONOUGH, INTERIM SECRETARY,FLORIDA DEPARTMENT OFCORRECTIONS on writ of certiorari to the united states court ofappeals for the eleventh circuit [April 25, 2006] Justice Scalia, with whom Justice Thomas and Justice Breyer join, dissenting. The Court today disregards the Federal Rules of Civil Procedure (Civil Rules) in habeas corpus cases, chiefly because it believes that this departure will make no difference. See ante, at 9. Even if that were true, which it is not, I could not join this novel presumption against applying the Civil Rules. The Civil Rules "govern the procedure in the United States district courts in all suits of a civil nature." Rule 1. This includes "proceedings for ... habeas corpus," Rule 81(a)(2), but only "to the extent that the practice in such proceedings is not set forth in statutes of the United States [or] the Rules Governing Section 2254 Cases [Habeas Rules]," Civil Rule 81(a)(2); see also Habeas Rule 11. Thus, "[t]he Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that they are not inconsistent with the Habeas Corpus Rules," Woodford v. Garceau, 538 U.S. 202, 208 (2003), and do not contradict or undermine the provisions of the habeas corpus statute, Gonzalez v. Crosby, 545 U.S. ___, ___ (2005) (slip op., at 4-5). As the Court notes, the Civil Rules adopt the traditional forfeiture rule for unpleaded limitations defenses. See ante, at 8 (citing Rules 8(c), 12(b), 15(a)). The Court does not identify any "inconsisten[cy]" between this forfeiture rule and the statute, Rules, or historical practice of habeas proceedings--because there is none. Forfeiture of the limitations defense is demonstrably not inconsistent with traditional habeas practice, because, as the Court acknowledges, habeas practice included no statute of limitations until 1996. Ante, at 2, n.1; see also infra, at 3-5. Forfeiture is perfectly consistent with Habeas Rule 5(b), which now provides that the State's "answer ... must state whether any claim in the petition is barred by ... statute of limitations." (Emphasis added.) And forfeiture is also consistent with (and indeed, arguably suggested by) Habeas Rule 4, because Rule 4 provides for suasponte screening and dismissal of habeas petitions only prior to the filing of the State's responsive pleading.1 Most importantly, applying the forfeiture rule to the limitations period of 28 U.S.C. §2244(d) does not contradict or undermine any provision of the habeas statute. Quite the contrary, on its most natural reading, the statute calls for the forfeiture rule. AEDPA expressly enacted, without further qualification, "[a] 1-year period of limitation" for habeas applications by persons in custody pursuant to the judgments of state courts. §2244(d)(1) (emphasis added). We have repeatedly stated that the enactment of time-limitation periods such as that in §2244(d), without further elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and forfeiture. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Eberhart v. United States, 546 U.S. ___, ___ (2005) (per curiam) (slip op., at 3); Kontrick v. Ryan, 540 U.S. 443, 447 (2004). Absent some affirmative incompatibility with habeas practice, there is no reason why a habeas limitations period should be any different. By imposing an unqualified "period of limitation" against the background understanding that a defense of "limita-tions" must be raised in the answer, see Civil Rules 8(c),12(b), the statute implies that the usual forfeiture rule isapplicable. Instead of identifying an inconsistency between habeas corpus practice and the usual civil forfeiture rule, the Court urges that "it would make scant sense to distinguish in this regard AEDPA's time bar from other threshold constraints on federal habeas petitioners" that may be raised suasponte--ante, at 10--namely, exhaustion of state remedies, procedural default, nonretroactivity, and (prior to AEDPA) abuse of the writ. See Granberry v. Greer, 481 U.S. 129, 133 (1987) (exhaustion); Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (nonretroactivity). But unlike AEDPA's statute of limitations, these defenses were all created by the habeas courts themselves, in the exercise of their traditional equitable discretion, see Withrow v. Williams, 507 U.S. 680, 717-718 (1993) (Scalia, J., concurring in part and dissenting in part), because they were seen as necessary to protect the interests of comity and finality that federal collateral review of state criminal proceedings necessarily implicates. See McCleskey v. Zant, 499 U.S. 467, 489-491 (1991) (abuse of the writ); Wainwright v. Sykes, 433 U.S. 72, 80-81 (1977) (procedural default); Teague v. Lane, 489 U.S. 288, 308 (1989) (nonretroactivity); Rose v. Lundy, 455 U.S. 509, 515 (1982) (exhaustion of state remedies). Unlike these other defenses, no time limitation--not even equitable laches--was imposed to vindicate comity and finality. AEDPA's 1-year limitations period is entirely a recent creature of statute. See ante, at 2, n.1. If comity and finality did not compel any time limitation at all, it follows a fortiori that they do not compel making a legislatively created, forfeitable time limitation nonforfeitable. In fact, prior to the enactment of AEDPA, we affirmatively rejected the notion that habeas courts' traditionally broad discretionary powers would support their imposition of a time bar. Historically, "there [wa]s no statute of limitations governing federal habeas, and the only laches recognized [wa]s that which affects the State's ability to defend against the claims raised on habeas"--which was imposed by Rule, and not until 1977. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Smith, 331 U.S. 469, 475 (1947); 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4268.2, p.497-498 (2d ed. 1988) (hereinafter Wright & Miller). We repeatedly asserted that the passage of time alone could not extinguish the habeas corpus rights of a person subject to unconstitutional incarceration. See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 123 (1956); Chessman v. Teets, 354 U.S. 156, 164-165 (1957). For better or for worse, this doctrine was so well entrenched that the lower courts regularly entertained petitions filed after even extraordinary delays. See, e.g., Hawkins v. Bennett, 423 F.2d 948, 949 (CA8 1970) (40 years); Hamilton v. Watkins, 436 F.2d 1323, 1325 (CA5 1970) (at least 36 years); Hannon v. Maschner, 845 F.2d 1553, 1553-1555 (CA10 1988) (at least 24 years). And in 1977, when enactment of the former Habeas Rule 9(a) "introduce[d] for the first time an element of laches into habeas corpus," 17A Wright & Miller §4268.2, at 498--by adopting the rule against "'prejudicial delay'" to which the Court refers, ante, at 2, n.1--even that limited doctrine was treated as subject to the very same pleading requirements and forfeiture rule that the Court rejects today for the stricter limitations period of §2244(d). See Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801, 821-822, n.30 (CA10 1995); see also McDonnell v. Estelle, 666 F.2d 246, 249 (CA5 1982). There is, therefore, no support for the notion that the traditional equitable discretion that governed habeas proceedings permitted the dismissal of habeas petitions on the sole ground of untimeliness. Whether or not it should have, see Collins v. Byrd, 510 U.S. 1185, 1186-1187 (1994) (Scalia, J., dissenting), it did not. The Court's reliance on pre-existing equitable doctrines like procedural default and nonretroactivity is, therefore, utterly misplaced. Nothing in our tradition of refusing to dismiss habeas petitions as untimely justifies the Court's decision to beef up the presumptively forfeitable "limitations period" of §2244(d) by making it the subject of suasponte dismissal. In what appears to be the chief ground of its decision, the Court also observes that "the Magistrate Judge, instead of acting suasponte, might have informed the State of its obvious computation error and entertained an amendment to the State's answer" under Civil Rule 15(a). Ante, at 9. "Although an amendment to the State's answer might have obviated this controversy," the Court concedes, "we see no dispositive difference between that route, and the one taken here." Ibid. But this consideration cuts in the opposite direction. If there truly were no "dispositive difference" between following and disregarding the rules that Congress has enacted, the natural conclusion would be that there is no compelling reason to disregard the Civil Rules.2 Legislatively enacted rules are surely entitled to more respect than this apparent presumption that, when nothing substantial hangs on the point, they do not apply as written. And, unlike the novel regime that the Court adopts today, which will apparently require the development of new rules from scratch, there already exists a well-developed body of law to govern the district courts' exercise of discretion under Rule 15(a). See 6 Wright & Miller §§1484-1488 (2d ed. 1990 and Supp. 2005). Ockham is offended by today's decision, even if no one else is. But, in fact, there are at least two notable differences between the Civil Rules and the suasponte regime of such cases as Granberry and Caspari--both of which involve sufficiently significant departures from ordinary civil practice as to require clear authorization from the statute, the Rules, or historical habeas practice. First, the Granberry regime allows the forfeited procedural defense to be raised for the first time on appeal, either by the State or by the appellate court sua sponte. See 510 U.S. 222, 228-229 (1994). Ordinary civil practice does not allow a forfeited affirmative defense whose underlying facts were not developed below to be raised for the first time on appeal. See Weinberger v. Salfi, 422 U.S. 749, 764 (1975); Metropolitan Housing Development Corp. v. Arlington Heights, 558 F.2d 1283, 1287 (CA7 1977). The ability to raise even constitutional errors in criminal trials for the first time on appeal is narrowly circumscribed. See Fed. Rule Crim. Proc. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Comity and finality justified this departure from ordinary practice for historically rooted equitable defenses such as exhaustion. See Granberry, supra, at 134. But limitations was not such a defense. Also, Granberry and the like raise the possibility that the courts can impose a procedural defense over the State's affirmative decision to waive that defense. The Court takes care to point out that this is not such a case, ante, at 11, but it invites such cases in future. After all, the principal justification for allowing such defenses to be raised suasponte is that they "'implicat[e] values beyond the concerns of the parties,'" including "'judicial efficiency and conservation of judicial resources'" and "the expeditious handling of habeas proceedings." Ante, at 6, 8 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (CA2 2000)). There are many reasons why the State may wish to disregard the statute of limitations, including the simple belief that it would be unfair to impose the limitations defense on a particular defendant. On the Court's reasoning, a district court would not abuse its discretion in overriding the State's conscious waiver of the defense in order to protect such "'values beyond the concerns of the parties,'" ante, at 6.3 Under the Civil Rules, by contrast, amending a party's pleading over his objection would constitute a clear abuse of the trial court's discretion. In sum, applying the ordinary rule of forfeiture to the AEDPA statute of limitations creates no inconsistency with the Habeas Rules. On the contrary, it is the Court's unwarranted expansion of the timeliness rule enacted by Congress that is inconsistent with the statute, the Habeas Rules, the Civil Rules, and traditional practice. I would hold that the ordinary forfeiture rule, as codified in the Civil Rules, applies to the limitations period of §2244(d). I respectfully dissent. FOOTNOTESFootnote 1Until AEDPA took effect in 1996, no statute of limitations applied to habeas petitions. See Mayle v. Felix, 545 U.S. ___, ___ (2005) (slip op., at 7). Courts invoked the doctrine of "prejudicial delay" to screen out unreasonably late filings. See generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §24 (4th ed. 2001). In AEDPA, Congress prescribed a uniform rule: "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. §2244(d)(1). Footnote 2Day urges this Court to find his petition timely. He asserts that the Eleventh Circuit misinterpreted §2244(d)(2) in holding that AEDPA's time limitation was not tolled during the 90-day period he could have petitioned this Court to review the denial of his motion for state postconviction relief. See Brief for Petitioner 45-50. This question was not "set out in the petition [for certiorari], or fairly included therein," and we therefore do not consider it here. This Court's Rule 14.1(a). We note, however, that the Court recently granted certiorari in Lawrence v. Florida, No. 05-8820 (cert. granted, Mar. 27, 2006), which presents the question whether AEDPA's time limitation is tolled during the pendency of a petition for certiorari from a judgment denying state postconviction relief. The instant opinion, we emphasize, addresses only the authority of the District Court to raise AEDPA's time bar, not the correctness of its decision that the limitation period had run. Footnote 3Day reads the Eleventh Circuit's opinion in this case as rendering mandatory a district court's suasponte application of AEDPA's one-year limitation, even when the respondent elects to waive the limitation and oppose the petition solely on the merits. See Tr. of Oral Arg. 6-8. He points to a sentence in the Eleventh Circuit's brief per curiam opinion stating: "A federal court that sits in collateral review of a criminal judgment of a state court has an obligation to enforce the federal statute of limitations." 391 F.3d, at 1194. We read the Eleventh Circuit's summary disposition in line with that court's description of its controlling precedent: "We ... ruled that, 'even though the statute of limitations is an affirmative defense, the district court may review suasponte the timeliness of [a federal habeas] petition.'" Ibid. (referring to Jackson v. Secretary for Dept. of Corrections, 292 F.3d, at 1349 (emphasis added)); see also 391 F.3d, at 1195 (State's "patently erroneous" concession of timeliness "does not compromise the authority of a district court suasponte to dismiss a habeas petition as untimely" under AEDPA's one-year limitation (emphasis added)). Footnote 4In AEDPA, enacted nearly a decade after Granberry, Congress expressly provided that "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." 28 U.S.C. §2254(b)(3). Footnote 5Trest held that a Court of Appeals was not obliged to raise procedural default on its own initiative, but declined to decide whether courts have discretion to do so. 522 U.S., at 89. Footnote 6Were we to accept Day's position, courts would never (or, at least, hardly ever) be positioned to raise AEDPA's time bar suasponte. As this Court recognized in Pliler v. Ford, 542 U.S. 225, 232 (2004), information essential to the time calculation is often absent--as it was in this case--until the State has filed, along with its answer, copies of documents from the state-court proceedings. Footnote 7The Habeas Rules were amended after the proceedings below. We cite the current version because both parties agree that the amendments to Rules 4 and 11, effective December 1, 2004, wrought no relevant substantive change. Footnote 8See Rhines v. Weber, 544 U.S. 269, 276 (2005) (AEDPA's time bar "quite plainly serves the well-recognized interest in the finality of state court judgments"; it "reduces the potential for delay on the road to finality[.]" (quoting Duncan v. Walker, 533 U.S. 167, 179 (2001))). Footnote 9 The Court is unanimous on this point. See post, at 5, n.2 (Scalia, J., dissenting). Footnote 10The procedural hindrance in Pliler was the petitioner's failure to exhaust state remedies. The Court in that case declined to rule on the propriety of the stay-and-abeyance procedure that would enable a habeas petitioner to remain in federal court while exhausting unexhausted claims in state court. 542 U.S., at 231. In a later decision, Rhines, 544 U.S., at 278-279, this Court held that a district court has discretion to stay a mixed petition (i.e., one that includes both exhausted and unexhausted claims) to allow a habeas petitioner to present his unexhausted claims to the state court in the first instance, then return to federal court for review of his perfected petition. Footnote 11A district court's discretion is confined within these limits. As earlier noted, should a State intelligently choose to waive a statute of limitations defense, a district court would not be at liberty to disregard that choice. See supra, at 2. But see post, at 7 (Scalia, J., dissenting). FOOTNOTESFootnote 1The Court observes that "[w]ere we to accept Day's position, courts would never (or, at least, hardly ever) be positioned to raise AEDPA's [Antiterrorism and Effective Death Penalty Act of 1996] time bar suasponte," because "information essential to the time calculation is often absent" at the Rule 4 prescreening stage, ante, at 7-8, n.6. But to be distressed at this phenomenon is to beg the question--that is, to assume that courts ought to "be positioned to raise AEDPA's time bar suasponte." That is precisely the question before us. Footnote 2I agree with the Court that today's decision will have little impact on the outcome of district court proceedings. In particular, I agree that "if a [district] judge does detect a clear computation error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge," ante, at 10. Rather, a judge may call the timeliness issue to the State's attention and invite a motion to amend the pleadings under Civil Rule 15(a), under which "leave shall be freely given when justice so requires." In fact, in providing for leave whenever "justice so requires," Rule 15(a), the Civil Rules fully accommodate the comity and finality interests that the Court thinks require a departure from the Civil Rules, see ante, at 6-7, 10. Requiring the State to take the affirmative step of amending its own pleading at least observes the formalities of our adversary system, which is a nontrivial value it itself. See United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring in judgment). Footnote 3In order to avoid this seemingly unavoidable conclusion, the Court asserts, without relevant citation or reasoning, that "should a State intelligently choose to waive a statute of limitations defense, a district court would not be at liberty to disregard that choice." Ante, at 11, n.11. This assertion is contrary to our statement in Granberry v. Greer, 481 U.S. 129, 134 (1987)--a case which, on the Court's view, it makes "scant sense to distinguish," ante, at 10--that an appellate court may dismiss an unexhausted petition suasponte in "cases in which the State fails, whether inadvertently or otherwise, to raise an arguably meritorious nonexhaustion defense." (Emphasis added.) To support its assertion, the Court cites nothing but its own earlier statement: "Ordinarily in civil litigation, a statutory time limit is forfeited if not raised in a defendant's answer or in an amendment thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense." Ante, at 2. But as the statement itself shows, the "ordinary" inability to override the State's "intelligent" waiver is coupled with an "ordinary" automatic forfeit of the defense if it is not timely raised. The Court does not say why it makes sense, for the statute of limitation of §2244(d)(1)(A), to reject (as it does) the first part of the ordinary practice (automatic forfeiture), while embracing the second (inability to override intelligent waiver). The reason for rejecting the first part surely applies just as well to the second: Section 2244(d)(1)(A) supposedly "'implicate[s] values beyond the concerns of the parties,'" including "'judicial efficiency,'" "'conservation of judicial resources'" and "expeditious handling of habeas proceedings." Ante, at 6, 8.

conservative

public_entity

criminal_procedure

1962-040-02

United States Supreme Court McCULLOCH v. SOCIEDAD NACIONAL(1963) No. 107 Argued: Decided: February 18, 1963 [Footnote * Together with No. 91, McLeod, Regional Director, National Labor Relations Board, v. Empresa Hondurena de Vapores, S. A., and No. 93, National Maritime Union of America, AFL-CIO, v. Empresa Hondurena de Vapores, S. A., both on certiorari to the United States Court of Appeals for the Second Circuit, argued and decided on the same dates. 1. A corporation organized and doing business in the United States beneficially owns vessels which make regular sailings between the United States, Latin American ports and other ports, transporting the corporation's products and other supplies. Each of the vessels is legally owned by a foreign subsidiary of the American corporation, flies the flag of a foreign nation, carries a foreign crew represented by a foreign union and has other contacts with the nation of its flag. Held: The jurisdictional provisions of the National Labor Relations Act do not extend to the maritime operations of such foreign-flag ships employing alien seamen. Pp. 11-22. 2. Although the members of the crews of these vessels were already represented by a foreign union, the National Labor Relations Board held that the Act extends to them, and it ordered representation elections. This assertion of power to determine the representation of foreign seamen aboard vessels under foreign flags aroused vigorous protests from foreign governments and created international problems for our Government. On application of the foreign bargaining agent of the vessels' crewmen, the United States District Court for the District of Columbia enjoined the members of the Board from conducting the elections. Held: This action falls within the limited exception fashioned in Leedom v. Kyne, 358 U.S. 184 ; the District Court had jurisdiction of the original suit [372 U.S. 10, 11] to set aside the Board's determination because it was made in excess of the Board's powers; and the judgment of the District Court is affirmed. Pp. 14-17. 201 F. Supp. 82, affirmed. 300 F.2d 222, judgment vacated and cases remanded. Dominick L. Manoli argued the cause for petitioners in Nos. 91 and 107. With him on briefs for the Regional Director and members of the National Labor Relations Board in all three cases were Stuart Rothman and Norton J. Come. Herman E. Cooper argued the cause for petitioner in No. 93. With him on the brief was H. Howard Ostrin. Charles S. Rhyne argued the cause for respondent in No. 107. With him on the brief was Brice W. Rhyne. Orison S. Marden argued the cause for respondent in Nos. 91 and 93. With him on the brief was Chester Bordeau. Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Acting Assistant Attorney General Guilfoyle, Daniel M. Friedman and Morton Hollander. Briefs of amici curiae, urging affirmance, were filed by Lawrence Hunt for the Government of the United Kingdom of Great Britain and Northern Ireland, by Robert MacCrate for Canada, by James F. Sams for the Government of the Republic of Honduras, and by Alfred Giardino for the United Fruit Company. A brief urging reversal was filed by J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae. [372 U.S. 10, 12] MR. JUSTICE CLARK delivered the opinion of the Court. These companion cases, involving the same facts, question the coverage of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 541, 29 U.S.C. 151 et seq. A corporation organized and doing business in the United States beneficially owns seagoing vessels which make regular sailings between United States, Latin American and other ports transporting the corporation's products and other supplies; each of the vessels is legally owned by a foreign subsidiary of the American corporation, flies the flag of a foreign nation, carries a foreign crew and has other contacts with the nation of its flag. The question arising is whether the Act extends to the crews engaged in such a maritime operation. The National Labor Relations Board in a representation proceeding on the application of the National Maritime Union held that it does and ordered an election. 134 N. L. R. B. 287. The vessels' foreign owner sought to enjoin the Board's Regional Director from holding the election, but the District Court for the Southern District of New York denied the requested relief. 200 F. Supp. 484. The Court of Appeals for the Second Circuit reversed, holding that the Act did not apply to the maritime operations here and thus the Board had no power to direct the election. 300 F.2d 222. The N. M. U. had intervened in the proceeding, and it petitioned for a writ of certiorari (No. 93), as did the Regional Director (No. 91). Meanwhile, the United States District Court for the District of Columbia, on application of the foreign bargaining agent of the vessels' crewmen, enjoined the Board members in No. 107. 201 F. Supp. 82. We granted each of the three petitions for certiorari, 370 U.S. 915 , and consolidated the cases for argument. 1 [372 U.S. 10, 13] We have concluded that the jurisdictional provisions of the Act do not extend to maritime operations of foreign-flag ships employing alien seamen. I. The National Maritime Union of America, AFL-CIO, filed a petition in 1959 with the National Labor Relations Board seeking certification under 9 (c) of the Act, 29 U.S.C. 159 (c), as the representative of the unlicensed seamen employed upon certain Honduran-flag vessels owned by Empresa Hondurena de Vapores, S. A., a Honduran corporation. The petition was filed against United Fruit Company, a New Jersey corporation which was alleged to be the owner of the majority of Empresa's stock. Empresa intervened and on hearing it was shown that United Fruit owns all of its stock and elects its directors, though no officer or director of Empresa is an officer or director of United Fruit and all are residents of Honduras. In turn the proof was that United Fruit is owned by citizens of the United States and maintains its principal office at Boston. Its business was shown to be the cultivation, gathering, transporting and sale of bananas, sugar, cacao and other tropical produce raised in Central and South American countries and sold in the United States. United Fruit maintains a fleet of cargo vessels which it utilizes in this trade. A portion of the fleet consists of 13 Honduran-registered vessels operated 2 by Empresa and time chartered to United Fruit, which vessels were included in National Maritime Union's representation proceeding. The crews on these vessels are recruited by Empresa in Honduras. They are Honduran citizens (save one Jamaican) and claim that country as their [372 U.S. 10, 14] residence and home port. The crew are required to sign Honduran shipping articles, and their wages, terms and condition of employment, discipline, etc., are controlled by a bargaining agreement between Empresa and a Honduran union, Sociedad Nacional de Marineros de Honduras. Under the Honduran Labor Code only a union whose "juridic personality" is recognized by Honduras and which is composed of at least 90% of Honduran citizens can represent the seamen on Honduran-registered ships. The N. M. U. fulfills neither requirement. Further, under Honduran law recognition of Sociedad as the bargaining agent compels Empresa to deal exclusively with it on all matters covered by the contract. The current agreement in addition to recognition of Sociedad provides for a union shop, with a no-strike-or-lockout provision, and sets up wage scales, special allowances, maintenance and cure provisions, hours of work, vacation time, holidays, overtime, accident prevention, and other details of employment as well. United Fruit, however, determines the ports of call of the vessels, their cargoes and sailings, integrating the same into its fleet organization. While the voyages are for the most part between Central and South American ports and those of the United States, the vessels each call at regular intervals at Honduran ports for the purpose of taking on and discharging cargo and, where necessary, renewing the ship's articles. II. The Board concluded from these facts that United Fruit operated a single, integrated maritime operation within which were the Empresa vessels, reasoning that United Fruit was a joint employer with Empresa of the seamen covered by N. M. U.'s petition. Citing its own West India Fruit & Steamship Co. opinion, 130 N. L. R. B. 343 (1961), it concluded that the maritime [372 U.S. 10, 15] operations involved substantial United States contacts, outweighing the numerous foreign contacts present. The Board held that Empresa was engaged in "commerce" within the meaning of 2 (6) of the Act 3 and that the maritime operations "affected commerce" within 2 (7), 4 meeting the jurisdictional requirement of 9 (c) (1). 5 It therefore ordered an election to be held among the seamen signed on Empresa's vessels to determine whether they wished N. M. U., Sindicato Maritimo Nacional de Honduras, 6 or no union to represent them. As we have indicated, both Empresa and Sociedad brought suits in Federal District Courts to prevent the election, Empresa proceeding in New York against the Regional Director - Nos. 91 and 93 - and Sociedad in the [372 U.S. 10, 16] District of Columbia against the members of the Board - No. 107. In Nos. 91 and 93 the jurisdiction of the District Court was challenged on two grounds: first, that review of representation proceedings is limited by 9 (d) of the Act, 29 U.S.C. 159 (d), to indirect review as part of a petition for enforcement or review of an order entered under 10 (c), 29 U.S.C. 160 (c); and, second, that the Board members were indispensable parties to the action. The challenge based upon 9 (d) was not raised or adjudicated in Sociedad's action against the Board members - No. 107 - and the indispensable-parties challenge is of course not an issue. Sociedad is not a party in Nos. 91 and 93, although the impact of the Board order - the same order challenged in No. 107 - is felt by it. That order has the effect of canceling Sociedad's bargaining agreement with Empresa's seamen, since Sociedad is not on the ballot called for by the Board. No. 107, therefore, presents the question in better perspective, and we have chosen it as the vehicle for our adjudication on the merits. This obviates our passing on the jurisdictional questions raised in Nos. 91 and 93, since the disposition of those cases is controlled by our decision in No. 107. We are not of course precluded from reexamining the jurisdiction of the District Court in Sociedad's action, merely because no challenge was made by the parties. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). Having examined the question whether the District Court had jurisdiction at the instance of Sociedad to enjoin the Board's order, we hold that the action falls within the limited exception fashioned in Leedom v. Kyne, 358 U.S. 184 (1958). In that case judicial intervention was permitted since the Board's order was "in excess of its delegated powers and contrary to a specific prohibition in the Act." Id., at 188. While here the Board has violated no specific prohibition in the Act, the overriding consideration is that the Board's assertion of power to determine [372 U.S. 10, 17] the representation of foreign seamen aboard vessels under foreign flags has aroused vigorous protests from foreign governments and created international problems for our Government. Important interests of the immediate parties are of course at stake. But the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board's power. No question of remotely comparable urgency was involved in Kyne, which was a purely domestic adversary situation. The exception recognized today is therefore not to be taken as an enlargement of the exception in Kyne. III. Since the parties all agree that the Congress has constitutional power to apply the National Labor Relations Act to the crews working foreign-flag ships, at least while they are in American waters, The Exchange, 7 Cranch 116, 143 (1812); Wildenhus's Case, 120 U.S. 1, 11 (1887); Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 142 (1957), we go directly to the question whether Congress exercised that power. Our decision on this point being dispositive of the case, we do not reach the other questions raised by the parties and the amici curiae. The question of application of the laws of the United States to foreign-flag ships and their crews has arisen often and in various contexts. 7 As to the application of the National Labor Relations Act and its amendments, the Board has evolved a test relying on the relative weight of a ship's foreign as compared with its American contacts. That test led the Board to conclude here, as in West India Fruit & Steamship Co., supra, that the foreign-flag ships' activities affected "commerce" and brought [372 U.S. 10, 18] them within the coverage of the Act. Where the balancing of the vessel's contacts has resulted in a contrary finding, the Board has concluded that the Act does not apply. 8 Six years ago this Court considered the question of the application of the Taft-Hartley amendments to the Act in a suit for damages "resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel [was] temporarily in an American port." Benz v. Compania Naviera Hidalgo, supra, at 139. We held that the Act did not apply, searching the language and the legislative history and concluding that the latter "inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions." Id., at 144. Subsequently, in Marine Cooks & Stewards v. Panama S. S. Co., 362 U.S. 365 (1960), we held that the Norris-LaGuardia Act, 29 U.S.C. 101, deprived a Federal District Court of jurisdiction to enjoin picketing of a foreign-flag ship, specifically limiting the holding to the jurisdiction of the court "to issue the injunction it did under the circumstances shown." Id., at 372. That case cannot be regarded as limiting the earlier Benz holding, however, since no question as to "whether the picketing . . . was tortious under state or federal law" was either presented or decided. Ibid. Indeed, the Court specifically noted that the application of the Norris-LaGuardia Act "to curtail and regulate the jurisdiction of courts" differs from the application of the Taft-Hartley Act "to regulate the conduct of people engaged in labor disputes." Ibid.; see Comment, 69 Yale L. J. 498, 523-525 (1960). It is contended that this case is nonetheless distinguishable from Benz in two respects. First, here there is a fleet of vessels not temporarily in United States waters but [372 U.S. 10, 19] operating in a regular course of trade between foreign ports and those of the United States; and, second, the foreign owner of the ships is in turn owned by an American corporation. We note that both of these points rely on additional American contacts and therefore necessarily presume the validity of the "balancing of contacts" theory of the Board. But to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports. Such activity would raise considerable disturbance not only in the field of maritime law but in our international relations as well. In addition, enforcement of Board orders would project the courts into application of the sanctions of the Act to foreign-flag ships on a purely ad hoc weighing of contacts basis. 9 This would inevitably lead to embarrassment in foreign affairs and be entirely infeasible in actual practice. The question, therefore, appears to us more basic; namely, whether the Act as written was intended to have any application to foreign registered vessels employing alien seamen. Petitioners say that the language of the Act may be read literally as including foreign-flag vessels within its coverage. But, as in Benz, they have been unable to point to any specific language in the Act itself or in its extensive legislative history that reflects such a congressional intent. Indeed, the opposite is true as we found in Benz, where [372 U.S. 10, 20] we pointed to the language of Chairman Hartley characterizing the Act as "a bill of rights both for American workingmen and for their employers." 353 U.S., at 144 . We continue to believe that if the sponsors of the original Act or of its amendments conceived of the application now sought by the Board they failed to translate such thoughts into describing the boundaries of the Act as including foreign-flag vessels manned by alien crews. 10 Therefore, we find no basis for a construction which would exert United States jurisdiction over and apply its laws to the internal management and affairs of the vessels here flying the Honduran flag, contrary to the recognition long afforded them not only by our State Department 11 [372 U.S. 10, 21] but also by the Congress. 12 In addition, our attention is called to the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, supra, at 12; Colombos, The International Law of the Sea (3d rev. ed. 1954), 222-223. The possibility of international discord cannot therefore be gainsaid. Especially is this true on account of the concurrent application of the Act and the Honduran Labor Code that would result with our approval of jurisdiction. Sociedad, currently the exclusive bargaining agent of Empresa under Honduran law, would have a head-on collision with N. M. U. should it become the exclusive bargaining agent under the Act. This would be aggravated by the fact that under Honduran law N. M. U. is prohibited from representing the seamen on Honduran-flag ships even in the absence of a recognized bargaining agent. Thus even though Sociedad withdrew from such an intramural labor fight - a highly unlikely circumstance - questions of such international import would remain as to invite retaliatory action from other nations as well as Honduras. The presence of such highly charged international circumstances brings to mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118 (1804), that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ." We therefore conclude, as we did in Benz, that for us to sanction the exercise of local sovereignty under such conditions in this "delicate field of international relations there must [372 U.S. 10, 22] be present the affirmative intention of the Congress clearly expressed." 353 U.S., at 147 . Since neither we nor the parties are able to find any such clear expression, we hold that the Board was without jurisdiction to order the election. This is not to imply, however, "any impairment of our own sovereignty, or limitation of the power of Congress" in this field. Lauritzen v. Larsen, 345 U.S. 571, 578 (1953). In fact, just as we directed the parties in Benz to the Congress, which "alone has the facilities necessary to make fairly such an important policy decision," 353 U.S., at 147 , we conclude here that the arguments should be directed to the Congress rather than to us. Cf. Lauritzen v. Larsen, supra, at 593. The judgment of the District Court is therefore affirmed in No. 107. The judgment of the Court of Appeals in Nos. 91 and 93 is vacated and the cases are remanded to that court, with instructions that it remand to the District Court for dismissal of the complaint in light of our decision in No. 107. It is so ordered. MR. JUSTICE GOLDBERG took no part in the consideration or decision of these cases. Footnotes [Footnote 1 In No. 107, appeal was perfected to the Court of Appeals for the District of Columbia Circuit, to which court we granted a writ of certiorari before judgment. [Footnote 2 Ten of the 13 vessels are owned and operated by Empresa. Three are owned by Balboa Shipping Co., Inc., a Panamanian subsidiary of United Fruit. Empresa acts as an agent for Balboa in the management of the latter vessels. [Footnote 3 29 U.S.C. 152 (6): "The term `commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country." [Footnote 4 29 U.S.C. 152 (7): "The term `affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." [Footnote 5 29 U.S.C. 159 (c) (1): "Whenever a petition shall have been filed . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing . . . ." Section 10 (a) of the Act, 29 U.S.C. 160 (a), imposes the same requirement, empowering the Board to "prevent any person from engaging in any unfair labor practice . . . affecting commerce." [Footnote 6 Sindicato, a Honduran union, had intervened in the proceeding. Sociedad was invited to intervene but declined to do so. [Footnote 7 See generally Comment, 69 Yale L. J. 498, 506-511 (1960); Boczek, Flags of Convenience (1962). [Footnote 8 E. g., Dalzell Towing Co., 137 N. L. R. B. No. 48, 50 L. R. R. M. 1164 (1962). [Footnote 9 Our conclusion does not foreclose such a procedure in different contexts, such as the Jones Act, 46 U.S.C. 688, where the pervasive regulation of the internal order of a ship may not be present. As regards application of the Jones Act to maritime torts on foreign ships, however, the Court has stated that "[p]erhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag." Lauritzen v. Larsen, 345 U.S. 571, 584 (1953); see Romero v. International Terminal Operating Co., 358 U.S. 354, 381 -384 (1959); Boczek, op. cit., supra, note 7, at 178-180. [Footnote 10 In 1959 Congress enacted 14 (c) (1) of the Act, 29 U.S.C. (Supp. II) 164 (c) (1), granting the Board discretionary power to decline jurisdiction over labor disputes with insubstantial effects, with a proviso that: ". . . the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959." It is argued that the Board would have exerted jurisdiction over Empresa's vessels and crewmen under those "standards," as illustrated by its action in Peninsular & Occidental Steamship Co., 120 N. L. R. B. 1097 (1958), about which case the Congress is presumed to have known. Aside from the fact that Congress presumably was aware also of our decision in Benz, the argument is unconvincing. Nothing in the language or the legislative history of the 1959 amendments to the Act clearly indicates a congressional intent to apply the Act to foreign-flag ships and their crews. The "standards" to which 14 (c) (1) refers are the minimum dollar amounts established by the Board for jurisdictional purposes, and the problem to which 14 (c) is addressed is the "no-man's land" created by Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957). See 25 N. L. R. B. Ann. Rep. 18-19 (1960); II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959), 1153-1154, 1720; 105 Cong. Rec. 6548-6549, 18134. [Footnote 11 State Department regulations provide that a foreign vessel includes "any vessel regardless of ownership, which is documented under the laws of a foreign country." 22 CFR 81.1 (f). [Footnote 12 Article X of the Treaty of Friendship, Commerce and Consular Rights between Honduras and the United States, 45 Stat. 2618 (1927), provides that merchant vessels flying the flags and having the papers of either country "shall, both within the territorial waters of the other High Contracting Party and on the high seas, be deemed to be the vessels of the Party whose flag is flown." MR. JUSTICE DOUGLAS, concurring. 1 I had supposed that the activities of American labor organizations whether related to domestic vessels or to foreign ones were covered by the National Labor Relations Act, at least absent a treaty which evinces a different policy. 2 Cf. Cook v. United States, 288 U.S. 102, 118 -120. [372 U.S. 10, 23] But my views were rejected in Benz v. Compania Naviera Hidalgo, 353 U.S. 138 ; and, having lost that cause in Benz, I bow to its inexorable extension here. The practical effect of our decision is to shift from all the taxpayers to seamen alone the main burden of financing an executive policy of assuring the availability of an adequate American-owned merchant fleet for federal use during national emergencies. See Note, Panlibhon Registration of American-Owned Merchant Ships: Government Policy and the Problem of the Courts, 60 Col. L. Rev. 711. [Footnote 1 [This opinion applies also to No. 33, Incres Steamship Co., Ltd., v. International Maritime Workers, post, p. 24.] [Footnote 2 It is agreed that Article XXII of the Treaty of Friendship, Commerce, and Consular Rights between the United States and Honduras, 45 Stat. 2618 (1927), and Article X of the Convention with Liberia of October 7, 1938, 54 Stat. 1751, 1756, grant those nations exclusive jurisdiction over the matters here involved. [372 U.S. 10, 24]

conservative

other

unions

1958-058-01

United States Supreme Court GANGER v. CITY OF MIAMI(1959) No. 153 Argued: Decided: March 9, 1959 Appeal dismissed for want of a properly presented substantial federal question. Reported below: 101 So.2d 116, 123. Thomas H. Anderson and Herbert L. Nadeau argued the cause for appellants. With them on the brief was Clyde Epperson. Milton M. Ferrell argued the cause and filed a brief for appellee. PER CURIAM. The appeal is dismissed for want of a properly presented substantial federal question. TOWNSEND v. SAIN, <flCite id="/us-supreme-court/359/64#">359 U.S. 64 </flCite> (1959) 359 U.S. 64 (1959) "> U.S. Supreme Court TOWNSEND v. SAIN, 359 U.S. 64 (1959) 359 U.S. 64 TOWNSEND v. SAIN, SHERIFF, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 552, Misc. Decided March 9, 1959. Certiorari granted; judgment vacated; and case remanded. George N. Leighton and William R. Ming, Jr. for appellant. Benjamin S. Adamowski for respondents. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the United States Court of Appeals for the Seventh Circuit is vacated and the case is remanded. United States ex rel. Jennings v. Ragen, Warden, 358 U.S. 276 . [359 U.S. 64, 65]

conservative

public_entity

judicial_power

2005-081-01

United States Supreme Court RANDALL et al. v. SORRELL et al.(2006) No. 04-1528 Argued: February 28, 2006Decided: June 26, 2006 Vermont's Act 64 stringently limits both the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute to those campaigns. Soon after Act 64 became law, the petitioners--individuals who have run for state office, citizens who vote in state elections and contribute to campaigns, and political parties and committees participating in state politics--brought this suit against the respondents, state officials charged with enforcing the Act. The District Court held that Act 64's expenditure limits violate the First Amendment, see Buckley v. Valeo, 424 U.S. 1, and that the Act's limits on political parties' contributions to candidates were unconstitutional, but found the other contribution limits constitutional. The Second Circuit held that all of the Act's contribution limits are constitutional, ruled that the expenditure limits may be constitutional because they are supported by compelling interests in preventing corruption or its appearance and in limiting the time state officials must spend raising campaign funds, and remanded for the District Court to determine whether the expenditure limits were narrowly tailored to those interests. Held:The judgment is reversed, and the cases are remanded. 382 F.3d 91, reversed and remanded. Justice Breyer, joined by The Chief Justice and Justice Alito, concluded in Parts I, II-B-3, III, and IV that both of Act 64's sets of limitations are inconsistent with the First Amendment. Pp.6-8, 10-29. 1.The expenditure limits violate the First Amendment's free speech guarantees under Buckley. Pp.6-8, 10-11. (a)In Buckley, the Court held, inter alia, that the Government's asserted interest in preventing "corruption and the appearance of corruption," 540 U.S. 93, 134. Pp.6-8. (b)The respondents argue unpersuasively that Buckley should be distinguished from the present cases on a ground they say Buckley did not consider: that expenditure limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. There is no significant basis for that distinction. Act 64's expenditure limits are not substantially different from those at issue in Buckley. Nor is Vermont's primary justification for imposing its expenditure limits significantly different from Congress' rationale for the Buckley limits: preventing corruption and its appearance. The respondents say unpersuasively that, had the Buckley Court considered the time protection rationale for expenditure limits, the Court would have upheld those limits in the FECA. The Buckley Court, however, was aware of the connection between expenditure limits and a reduction in fundraising time. And, in any event, the connection seems perfectly obvious. Under these circumstances, the respondents' argument amounts to no more than an invitation so to limit Buckley's holding as effectively to overrule it. That invitation is declined. Pp.10-11. 2.Act 64's contribution limits violate the First Amendment because those limits, in their specific details, burden protected interests in a manner disproportionate to the public purposes they were enacted to advance. Pp.11-29. (a)In upholding the $1,000 contribution limit before it, the Buckley Court recognized, inter alia, that such limits, unlike expenditure limits, "involv[e] little direct restraint on" the contributor's speech, 528 U.S. 377, 395-397. Pp.12-13. (b)Although the Court has "no scalpel to probe," 466 U.S. 485, 499. Danger signs that Act 64's contribution limits may fall outside tolerable First Amendment limits are present here. They are substantially lower than both the limits the Court has previously upheld and the comparable limits in force in other States. Consequently, the record must be examined to determine whether Act 64's contribution limits are "closely drawn" to match the State's interests. Pp.13-19. (c)The record demonstrates that, from a constitutional perspective, Act 64's contribution limits are too restrictive. Five sets of factors, taken together, lead to the conclusion that those limits are not narrowly tailored. First, the record suggests, though it does not conclusively prove, that Act 64's contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. Second, Act 64's insistence that a political party and all of its affiliates together abide by exactly the same low $200 to $400 contribution limits that apply to individual contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 574. Although the Court upheld federal limits on political parties' contributions to candidates in Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, the limits there at issue were far less problematic, for they were significantly higher than Act 64's limits, see, e.g., id., at 438-439, and n.3, and they were much higher than the federal limits on contributions from individuals to candidates, see id., at 453. Third, Act 64's treatment of volunteer services aggravates the problem. Although the Act excludes uncompensated volunteer services from its "contribution" definition, it does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities. The combination of very low contribution limits and the absence of an exception excluding volunteer expenses may well impede a campaign's ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. Buckley, supra, at 22. Fourth, unlike the contribution limits upheld in Shrink, Act 64's limits are not adjusted for inflation, but decline in real value each year. A failure to index limits means that limits already suspiciously low will almost inevitably become too low over time. Fifth, nowhere in the record is there any special justification for Act 64's low and restrictive contribution limits. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. Indeed, other things being equal, one might reasonably believe that a contribution of, say, $250 (or $450) to a candidate's campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases the Court has considered. Pp.19-28. (d)It is not possible to sever some of the Act's contribution limit provisions from others that might remain fully operative. Doing so would require the Court to write words into the statute (inflation indexing), to leave gaping loopholes (no limits on party contributions), or to foresee which of many different possible ways the Vermont Legislature might respond to the constitutional objections to Act 64. In these circumstances, the legislature likely would not have intended the Court to set aside the statute's contribution limits. The legislature is free to rewrite those provisions to address the constitutional difficulties here identified. Pp. 28-29. Justice Breyer, joined by The Chief Justice in Parts II-B-1 and II-B-2, rejected the respondents' argument that Buckley should, in effect, be overruled because subsequent experience has shown that contribution limits alone cannot effectively deter corruption or its appearance. Stare decisis, the basic legal principle commanding judicial respect for a court's earlier decisions and their rules of law, prevents the overruling of Buckley. Adherence to precedent is the norm; departure from it is exceptional, requiring "special justification," Arizona v. Rumsey, 467 U.S. 203, 212, especially where, as here, the principle at issue has become settled through iteration and reiteration over a long period. There is no special justification here. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U.S. 428, 443. Nor is there any demonstration that circumstances have changed so radically as to undermine Buckley's critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. Cf. McConnell, supra. Finally, overruling Buckley now would dramatically undermine the considerable reliance that Congress and state legislatures have placed upon it in drafting campaign finance laws. And this Court has followed Buckley, upholding and applying its reasoning in later cases. Pp.8-10. Justice Alito agreed that Act 64's expenditure and contribution limits violate the First Amendment, but concluded that respondents' backup argument asking this Court to revisit Buckley v. Valeo, 424 U.S. 1, need not be reached because they have failed to address considerations of stare decisis. Pp.1-2. Justice Kennedy agreed that Vermont's limitations on campaign expenditures and contributions violate the First Amendment, but concluded that, given his skepticism regarding this Court's campaign finance jurisprudence, see, e.g., McConnell v. Federal Election Comm'n, 540 U.S. 93, 286-287, 313, it is appropriate for him to concur only in the judgment. Pp.1-3. Justice Thomas, joined by Justice Scalia, agreed that Vermont's Act 64 is unconstitutional, but disagreed with the plurality's rationale for striking down that statute. Buckley v. Valeo, 424 U.S. 1, provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment. This Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410-418. Both the contribution and expenditure restrictions of Act 64 should be subjected to strict scrutiny, which they would fail. See, e.g., Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 640-641. Pp.1-10. Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C.J., joined, and in which Alito, J., joined as to all but Parts II-B-1 and II-B-2. Alito, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Stevens, J., joined as to Parts II and III. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Breyer announced the judgment of the Court, and delivered an opinion in which The Chief Justice joins, and in which Justice Alito joins except as to Parts II-B-1 and II-B-2. We here consider the constitutionality of a Vermont campaign finance statute that limits both (1) the amounts that candidates for state office may spend on their campaigns (expenditure limitations) and (2) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitations). Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002). We hold that both sets of limitations are inconsistent with the First Amendment. Well-established precedent makes clear that the expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U.S. 1, 54-58 (1976) (per curiam). The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring. Id., at 25-30. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute's legitimate objectives) are disproportionately severe. I A Prior to 1997, Vermont's campaign finance law imposed no limit upon the amount a candidate for state office could spend. It did, however, impose limits upon the amounts that individuals, corporations, and political committees could contribute to the campaign of such a candidate. Individuals and corporations could contribute no more than $1,000 to any candidate for state office. §2805(a) (1996). Political committees, excluding political parties, could contribute no more than $3,000. §2805(b). The statute imposed no limit on the amount that political parties could contribute to candidates. In 1997, Vermont enacted a more stringent campaign finance law, Pub. Act No. 64, codified at Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002) (hereinafter Act or Act 64), the statute at issue here. Act 64, which took effect immediately after the 1998 elections, imposes mandatory expenditure limits on the total amount a candidate for state office can spend during a "two-year general election cycle," i.e., the primary plus the general election, in approximately the following amounts: governor, $300,000; lieutenant governor, $100,000; other statewide offices, $45,000; state senator, $4,000 (plus an additional $2,500 for each additional seat in the district); state representative (two-member district), $3,000; and state representative (single member district), $2,000. §2805a(a). These limits are adjusted for inflation in odd-numbered years based on the Consumer Price Index. §2805a(e). Incumbents seeking reelection to statewide office may spend no more than 85% of the above amounts, and incumbents seeking reelection to the State Senate or House may spend no more than 90% of the above amounts. §2805a(c). The Act defines "[e]xpenditure" broadly to mean the "payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates." §2801(3). With certain minor exceptions, expenditures over $50 made on a candidate's behalf by others count against the candidate's expenditure limit if those expenditures are "intentionally facilitated by, solicited by or approved by" the candidate's campaign. §§2809(b), (c). These provisions apply so as to count against a campaign's expenditure limit any spending by political parties or committees that is coordinated with the campaign and benefits the candidate. And any party expenditure that "primarily benefits six or fewer candidates who are associated with the political party" is "presumed" to be coordinated with the campaign and therefore to count against the campaign's expenditure limit. §§2809(b), (d). Act 64 also imposes strict contribution limits. The amount any single individual can contribute to the campaign of a candidate for state office during a "two-year general election cycle" is limited as follows: governor, lieutenant governor, and other statewide offices, $400; state senator, $300; and state representative, $200. §2805(a). Unlike its expenditure limits, Act 64's contribution limits are not indexed for inflation. A political committee is subject to these same limits. Ibid. So is a political party, ibid., defined broadly to include "any subsidiary, branch or local unit" of a party, as well as any "national or regional affiliates" of a party (taken separately or together). §2801(5). Thus, for example, the statute treats the local, state, and national affiliates of the Democratic Party as if they were a single entity and limits their total contribution to a single candidate's campaign for governor (during the primary and the general election together) to $400. The Act also imposes a limit of $2,000 upon the amount any individual can give to a political party during a 2-year general election cycle. §2805(a). The Act defines "contribution" broadly in approximately the same way it defines "expenditure." §2801(2). Any expenditure made on a candidate's behalf counts as a contribution to the candidate if it is "intentionally facilitated by, solicited by or approved by" the candidate. §§2809(a), (c). And a party expenditure that "primarily benefits six or fewer candidates who are associated with the" party is "presumed" to count against the party's contribution limits. §§2809(a), (d). There are a few exceptions. A candidate's own contributions to the campaign and those of the candidate's family fall outside the contribution limits. §2805(f). Volunteer services do not count as contributions. §2801(2). Nor does the cost of a meet-the-candidate function, provided that the total cost for the function amounts to $100 or less. §2809(d). In addition to these expenditure and contribution limits, the Act sets forth disclosure and reporting requirements and creates a voluntary public financing system for gubernatorial elections. §§2803, 2811, 2821-2823, 2831, 2832, 2851-2856. None of these is at issue here. The Act also limits the amount of contributions a candidate, political committee, or political party can receive from out-of-state sources. §2805(c). The lower courts held these out-of-state contribution limits unconstitutional, and the parties do not challenge that holding. B The petitioners are individuals who have run for state office in Vermont, citizens who vote in Vermont elections and contribute to Vermont campaigns, and political parties and committees that participate in Vermont politics. Soon after Act 64 became law, they brought this lawsuit in Federal District Court against the respondents, state officials charged with enforcement of the Act. Several other private groups and individual citizens intervened in the District Court proceedings in support of the Act and are joined here as respondents as well. The District Court agreed with the petitioners that the Act's expenditure limits violate the First Amendment. See Buckley, 424 U.S. 1. The court also held unconstitutional the Act's limits on the contributions of political parties to candidates. At the same time, the court found the Act's other contribution limits constitutional. Landell v. Sorrell, 118 F.Supp. 2d 470 (Vt. 2000). Both sides appealed. A divided panel of the Court of Appeals for the Second Circuit held that all of the Act's contribution limits are constitutional. It also held that the Act's expenditure limits may be constitutional. Landell v. Sorrell, 382 F.3d 91 (2004). It found those limits supported by two compelling interests, namely, an interest in preventing corruption or the appearance of corruption and an interest in limiting the amount of time state officials must spend raising campaign funds. The Circuit then remanded the case to the District Court with instructions to determine whether the Act's expenditure limits were narrowly tailored to those interests. The petitioners and respondents all sought certiorari. They asked us to consider the constitutionality of Act 64's expenditure limits, its contribution limits, and a related definitional provision. We agreed to do so. 545 U.S. ___ (2005). II We turn first to the Act's expenditure limits. Do those limits violate the First Amendment's free speech guarantees? A In Buckley v. Valeo, supra, the Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as amended, 2 U.S.C. §431 et seq., a statute that, much like the Act before us, imposed both expenditure and contribution limitations on campaigns for public office. The Court, while upholding FECA's contribution limitations as constitutional, held that the statute's expenditure limitations violated the First Amendment. Buckley stated that both kinds of limitations "implicate fundamental First Amendment interests." 424 U.S., at 23. It noted that the Government had sought to justify the statute's infringement on those interests in terms of the need to prevent "corruption and the appearance of corruption." Id., at 25; see also id., at 55. In the Court's view, this rationale provided sufficient justification for the statute's contribution limitations, but it did not provide sufficient justification for the expenditure limitations. The Court explained that the basic reason for this difference between the two kinds of limitations is that expenditure limitations "impose significantly more severe restrictions on protected freedoms of political expression and association than" do contribution limitations. Id., at 23. Contribution limitations, though a "marginal restriction upon the contributor's ability to engage in free communication," nevertheless leave the contributor "fre[e] to discuss candidates and issues." Id., at 20-21. Expenditure limitations, by contrast, impose "[a] restriction on the amount of money a person or group can spend on political communication during a campaign." Id., at 19. They thereby necessarily "reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Ibid. Indeed, the freedom "to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline." Id., at 19, n. 18. The Court concluded that "[n]o governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by" the statute's expenditure limitations. Id., at 55. It decided that the Government's primary justification for expenditure limitations, preventing corruption and its appearance, was adequately addressed by the Act's contribution limitations and disclosure requirements. Ibid. The Court also considered other governmental interests advanced in support of expenditure limitations. It rejected each. Id., at 56-57. Consequently, it held that the expenditure limitations were "constitutionally invalid." Id., at 58. Over the last 30 years, in considering the constitutionality of a host of different campaign finance statutes, this Court has repeatedly adhered to Buckley's constraints, including those on expenditure limits. See McConnell v. Federal Election Comm'n, 540 U.S. 93, 134 (2003); Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (2001) (Colorado II); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 386 (2000) (Shrink); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 610 (1996) (Colorado I) (plurality opinion); Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-260 (1986); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 491 (1985) (NCPAC); California Medical Assn. v. Federal Election Comm'n, 453 U.S. 182, 194-195 (1981) (plurality opinion). B 1 The respondents recognize that, in respect to expenditure limits, Buckley appears to be a controlling--and unfavorable--precedent. They seek to overcome that precedent in two ways. First, they ask us in effect to overrule Buckley. Post-Buckley experience, they believe, has shown that contribution limits (and disclosure requirements) alone cannot effectively deter corruption or its appearance; hence experience has undermined an assumption underlying that case. Indeed, the respondents have devoted several pages of their briefs to attacking Buckley's holding on expenditure limits. See Brief for Respondent-Cross-Petitioner Vermont Public Interest Research Group etal. 36-39 (arguing that "sound reasons exist to revisit the applicable standard of review" for expenditure limits); Brief for Respondent-Cross-Petitioner William Sorrell etal. 28-31 (arguing that "the Court should revisit Buckley and consider alternative constitutional approaches to spending limits"). Second, in the alternative, they ask us to limit the scope of Buckley significantly by distinguishing Buckley from the present case. They advance as a ground for distinction a justification for expenditure limitations that, they say, Buckley did not consider, namely that such limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. We find neither argument persuasive. 2 The Court has often recognized the "fundamental importance" of stare decisis, the basic legal principle that commands judicial respect for a court's earlier decisions and the rules of law they embody. See Harris v. United States, 536 U.S. 545, 556-557 (2002) (plurality opinion) (citing numerous cases). The Court has pointed out that stare decisis "'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires "special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time. We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U.S. 428, 443 (2000). We cannot find in the respondents' claims any demonstration that circumstances have changed so radically as to undermine Buckley's critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. Cf. McConnell v. FEC, 540 U.S. 93. At the same time, Buckley has promoted considerable reliance. Congress and state legislatures have used Buckley when drafting campaign finance laws. And, as we have said, this Court has followed Buckley, upholding and applying its reasoning in later cases. Overruling Buckley now would dramatically undermine this reliance on our settled precedent. For all these reasons, we find this a case that fits the stare decisis norm. And we do not perceive the strong justification that would be necessary to warrant overruling so well established a precedent. We consequently decline the respondents' invitation to reconsider Buckley. 3 The respondents also ask us to distinguish these cases from Buckley. But we can find no significant basis for that distinction. Act 64's expenditure limits are not substantially different from those at issue in Buckley. In both instances the limits consist of a dollar cap imposed upon a candidate's expenditures. Nor is Vermont's primary justification for imposing its expenditure limits significantly different from Congress' rationale for the Buckley limits: preventing corruption and its appearance. The sole basis on which the respondents seek to distinguish Buckley concerns a further supporting justification. They argue that expenditure limits are necessary in order to reduce the amount of time candidates must spend raising money. Brief for Respondent/Cross-Petitioner Vermont Public Interest Research Group etal. 16-20; Brief for Respondent/Cross-Petitioner William H. Sorrell etal. 22-25. Increased campaign costs, together with the fear of a better-funded opponent, mean that, without expenditure limits, a candidate must spend too much time raising money instead of meeting the voters and engaging in public debate. Buckley, the respondents add, did not fully consider this justification. Had it done so, they say, the Court would have upheld, not struck down, FECA's expenditure limits. In our view, it is highly unlikely that fuller consideration of this time protection rationale would have changed Buckley's result. The Buckley Court was aware of the connection between expenditure limits and a reduction in fundraising time. In a section of the opinion dealing with FECA's public financing provisions, it wrote that Congress was trying to "free candidates from the rigors of fundraising." 424 U.S., at 91; see also id., at 96 ("[L]imits on contributions necessarily increase the burden of fundraising," and "public financing" was designed in part to relieve Presidential candidates "from the rigors of soliciting private contributions"); id., at 258-259 (White, J., concurring in part and dissenting in part) (same). The Court of Appeals' opinion and the briefs filed in this Court pointed out that a natural consequence of higher campaign expenditures was that "candidates were compelled to allow to fund raising increasing and extreme amounts of money and energy." Buckley v. Valeo, 519 F.2d 821, 838 (CADC 1975); see also Brief for United States etal. as Amici Curiae in Buckley v. Valeo, O.T. 1975, Nos. 75-436 and 75-437, p. 36 ("Fund raising consumes candidate time that otherwise would be devoted to campaigning"). And, in any event, the connection between high campaign expenditures and increased fundraising demands seems perfectly obvious. Under these circumstances, the respondents' argument amounts to no more than an invitation so to limit Buckley's holding as effectively to overrule it. For the reasons set forth above, we decline that invitation as well. And, given Buckley's continued authority, we must conclude that Act 64's expenditure limits violate the First Amendment. III We turn now to a more complex question, namely the constitutionality of Act 64's contribution limits. The parties, while accepting Buckley's approach, dispute whether, despite Buckley's general approval of statutes that limit campaign contributions, Act 64's contribution limits are so severe that in the circumstances its particular limits violate the First Amendment. A As with the Act's expenditure limits, we begin with Buckley. In that case, the Court upheld the $1,000 contribution limit before it. Buckley recognized that contribution limits, like expenditure limits, "implicate fundamental First Amendment interests," namely, the freedoms of "political expression" and "political association." 424 U.S., at 15, 23. But, unlike expenditure limits (which "necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached," id., at 19), contribution limits "involv[e] little direct restraint on" the contributor's speech, id., at 21. They do restrict "one aspect of the contributor's freedom of political association," namely, the contributor's ability to support a favored candidate, but they nonetheless "permi[t] the symbolic expression of support evidenced by a contribution," and they do "not in any way infringe the contributor's freedom to discuss candidates and issues." Id., at 21, 24. Consequently, the Court wrote, contribution limitations are permissible as long as the Government demonstrates that the limits are "closely drawn" to match a "sufficiently important interest." Id., at 25. It found that the interest advanced in the case, "prevent[ing] corruption" and its "appearance," was "sufficiently important" to justify the statute's contribution limits. Id., at 25-26. The Court also found that the contribution limits before it were "closely drawn." It recognized that, in determining whether a particular contribution limit was "closely drawn," the amount, or level, of that limit could make a difference. Indeed, it wrote that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Id., at 21. But the Court added that such "distinctions in degree become significant only when they can be said to amount to differences in kind." Id., at 30. Pointing out that it had "no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000," ibid., the Court found "no indication" that the $1,000 contribution limitations imposed by the Act would have "any dramatic adverse effect on the funding of campaigns," id., at 21. It therefore found the limitations constitutional. Since Buckley, the Court has consistently upheld contribution limits in other statutes. Shrink, 528 U.S. 377 ($1075 limit on contributions to candidates for Missouri state auditor); California Medical Assn., 453 U.S. 182 ($5,000 limit on contributions to multicandidate political committees). The Court has recognized, however, that contribution limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify. See Shrink, supra, at 395-397; Buckley, supra, at 21. And individual Members of the Court have expressed concern lest too low a limit magnify the "reputation-related or media-related advantages of incumbency and thereby insulat[e] legislators from effective electoral challenge." Shrink, supra, at 403-404 (Breyer, J., joined by Ginsburg, J., concurring). In the cases before us, the petitioners challenge Act 64's contribution limits on that basis. B Following Buckley, we must determine whether Act 64's contribution limits prevent candidates from "amassing the resources necessary for effective [campaign] advocacy," 424 U.S., at 21; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny. In answering these questions, we recognize, as Buckley stated, that we have "no scalpel to probe" each possible contribution level. Id., at 30. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have "particular expertise" in matters related to the costs and nature of running for office. McConnell, 540 U.S., at 137. Thus ordinarily we have deferred to the legislature's determination of such matters. Nonetheless, as Buckley acknowledged, we must recognize the existence of some lower bound. At some point the constitutional risks to the democratic electoral process become too great. After all, the interests underlying contribution limits, preventing corruption and the appearance of corruption, "directly implicate the integrity of our electoral process." McConnell, supra, at 136 (internal quotation marks omitted). Yet that rationale does not simply mean "the lower the limit, the better." That is because contribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. Were we to ignore that fact, a statute that seeks to regulate campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to promote. Thus, we see no alternative to the exercise of independent judicial judgment as a statute reaches those outer limits. And, where there is strong indication in a particular case, i.e., danger signs, that such risks exist (both present in kind and likely serious in degree), courts, including appellate courts, must review the record independently and carefully with an eye toward assessing the statute's "tailoring," that is, toward assessing the proportionality of the restrictions. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) ("[A]n appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression'" (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286 (1964))). We find those danger signs present here. As compared with the contribution limits upheld by the Court in the past, and with those in force in other States, Act 64's limits are sufficiently low as to generate suspicion that they are not closely drawn. The Act sets its limits per election cycle, which includes both a primary and a general election. Thus, in a gubernatorial race with both primary and final election contests, the Act's contribution limit amounts to $200 per election per candidate (with significantly lower limits for contributions to candidates for State Senate and House of Representatives, see supra, at 3). These limits apply both to contributions from individuals and to contributions from political parties, whether made in cash or in expenditures coordinated (or presumed to be coordinated) with the candidate. See supra, at 3-4. These limits are well below the limits this Court upheld in Buckley. Indeed, in terms of real dollars (i.e., adjusting for inflation), the Act's $200 per election limit on individual contributions to a campaign for governor is slightly more than one-twentieth of the limit on contributions to campaigns for federal office before the Court in Buckley. Adjusted to reflect its value in 1976 (the year Buckley was decided), Vermont's contribution limit on campaigns for statewide office (including governor) amounts to $113.91 per 2-year election cycle, or roughly $57 per election, as compared to the $1,000 per election limit on individual contributions at issue in Buckley. (The adjusted value of Act 64's limit on contributions from political parties to candidates for statewide office, again $200 per candidate per election, is just over one one-hundredth of the comparable limit before the Court in Buckley, $5,000 per election.) Yet Vermont's gubernatorial district--the entire State--is no smaller than the House districts to which Buckley's limits applied. In 1976, the average congressional district contained a population of about 465,000. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 459 (1976) (Statistical Abstract) (describing results of 1970 census). Indeed, Vermont's population is 621,000--about one-third larger. Statistical Abstract 21 (2006) (describing Vermont's population in 2004). Moreover, considered as a whole, Vermont's contribution limits are the lowest in the Nation. Act 64 limits contributions to candidates for statewide office (including governor) to $200 per candidate per election. We have found no State that imposes a lower per election limit. Indeed, we have found only seven States that impose limits on contributions to candidates for statewide office at or below $500 per election, more than twice Act 64's limit. Cf. Ariz. Rev. Stat. Ann. §16-905 (West Cum. Supp. 2005) ($760 per election cycle, or $380 per election, adjusted for inflation); Colo. Const., Art. XXVIII, §3 ($500 per election, adjusted for inflation); Fla. Stat. §106.08(1)(a) (2003) ($500 per election); Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) ($500 for governor, $250 for other statewide office, per election); Mass. Gen. Laws, ch. 55, §7A (West Supp. 2006) ($500 per year, or $250 per election); Mont. Code Ann. §13-37-216(1)(a) (2005) ($500 for governor, $250 for other statewide office, per election); S.D. Codified Laws §12-25-1.1 (2004) ($1,000 per year, or $500 per election). We are aware of no State that imposes a limit on contributions from political parties to candidates for statewide office lower than Act 64's $200 per candidate per election limit. Cf. Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) (next lowest: $500 for contribution from party to candidate for governor, $250 for contribution from party to candidate for other statewide office, both per election). Similarly, we have found only three States that have limits on contributions to candidates for state legislature below Act 64's $150 and $100 per election limits. Ariz. Rev. Stat. Ann. §16-905 (West Cum. Supp. 2005) ($296 per election cycle, or $148 per election); Mont. Code Ann. §13-37-216(1)(a) (2005) ($130 per election); S.D. Codified Laws §12-25-1.1 (2004) ($250 per year, or $125 per election). And we are aware of no State that has a lower limit on contributions from political parties to state legislative candidates. Cf. Me. Rev. Stat. Ann., Tit. 21A, §1015(1) (1993) (next lowest: $250 per election). Finally, Vermont's limit is well below the lowest limit this Court has previously upheld, the limit of $1,075 per election (adjusted for inflation every two years, see Mo. Rev. Stat. §130.032.2 (1998 Cum. Supp.)) for candidates for Missouri state auditor. Shrink, 528 U.S. 377. The comparable Vermont limit of roughly $200 per election, not adjusted for inflation, is less than one-sixth of Missouri's current inflation-adjusted limit ($1,275). We recognize that Vermont's population is much smaller than Missouri's. Indeed, Vermont is about one-ninth of the size of Missouri. Statistical Abstract 21 (2006). Thus, per citizen, Vermont's limit is slightly more generous. As of 2006, the ratio of the contribution limit to the size of the constituency in Vermont is .00064, while Missouri's ratio is .00044, 31% lower. Cf. App. 55 (doing same calculation in 2000). But this does not necessarily mean that Vermont's limits are less objectionable than the limit upheld in Shrink. A campaign for state auditor is likely to be less costly than a campaign for governor; campaign costs do not automatically increase or decrease in precise proportion to the size of an electoral district. See App. 66 (1998 winning candidate for Vermont state auditor spent about $60,000; winning candidate for governor spent about $340,000); Opensecrets.org, The Big Picture, 2004 Cycle: Hot Races, available at http://www.opensecrets.org/bigpicture/hotraces.asp?cycle=2004 (as visited June 22, 2006, and available in Clerk of Court's case file) (U.S. Senate campaigns identified as competitive spend less per voter than U.S. House campaigns identified as competitive). Moreover, Vermont's limits, unlike Missouri's limits, apply in the same amounts to contributions made by political parties. Mo. Rev. Stat. §130.032.4 (2000) (enacting limits on contributions from political parties to candidates 10 times higher than limits on contributions from individuals). And, as we have said, Missouri's (current) $1,275 per election limit, unlike Vermont's $200 per election limit, is indexed for inflation. See supra, at 17; see also Mo. Rev. Stat. §130.032.2 (2000). The factors we have mentioned offset any neutralizing force of population differences. At the very least, they make it difficult to treat Shrink's (then) $1,075 limit as providing affirmative support for the lawfulness of Vermont's far lower levels. Cf. 528 U.S., at 404 (Breyer, J., concurring) (The Shrink "limit . . . is low enough to raise ... a [significant constitutional] question"). And even were that not so, Vermont's failure to index for inflation means that Vermont's levels would soon be far lower than Missouri's regardless of the method of comparison. In sum, Act 64's contribution limits are substantially lower than both the limits we have previously upheld and comparable limits in other States. These are danger signs that Act 64's contribution limits may fall outside tolerable First Amendment limits. We consequently must examine the record independently and carefully to determine whether Act 64's contribution limits are "closely drawn" to match the State's interests. C Our examination of the record convinces us that, from a constitutional perspective, Act 64's contribution limits are too restrictive. We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute's effect on political parties and on volunteer activity in Vermont elections. Taken together, Act 64's substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives. In particular, five factors together lead us to this decision. First, the record suggests, though it does not conclusively prove, that Act 64's contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. For one thing, the petitioners' expert, Clark Bensen, conducted a race-by-race analysis of the 1998 legislative elections (the last to take place before Act 64 took effect) and concluded that Act 64's contribution limits would have reduced the funds available in 1998 to Republican challengers in competitive races in amounts ranging from 18% to 53% of their total campaign income. See 3 Tr. 52-57 (estimating loss of 47% of funds for candidate Tully, 50% for Harvey, 53% for Welch, 19% for Bahre, 29% for Delaney, 36% for LaRocque, 18% for Smith, and 31% for Brown). For another thing, the petitioners' expert witnesses produced evidence and analysis showing that Vermont political parties (particularly the Republican Party) "target" their contributions to candidates in competitive races, that those contributions represent a significant amount of total candidate funding in such races, and that the contribution limits will cut the parties' contributions to competitive races dramatically. See 1 id., at 189-190; 3 id., at 50-51; 8 id., at 139; 10 id., at 150; see also, e.g., Gierzynski & Breaux, The Role of Parties in Legislative Campaign Financing, 15 Am. Rev. Politics 171 (1994); Thompson, Cassie, & Jewell, A Sacred Cow or Just a Lot of Bull? Party and PAC Money in State Legislative Elections, 47 Pol. Sci. Q. 223 (1994). Their statistics showed that the party contributions accounted for a significant percentage of the total campaign income in those races. And their studies showed that Act 64's contribution limits would cut the party contributions by between 85% (for the legislature on average) and 99% (for governor). More specifically, Bensen pointed out that in 1998, the Republican Party made contributions to 19 Senate campaigns in amounts that averaged $2,001, which on average represented 16% of the recipient campaign's total income. 3 Tr. 84. Act 64 would reduce these contributions to $300 per campaign, an average reduction of about 85%. Ibid. The party contributed to 50 House campaigns in amounts averaging $787, which on average represented 28% of the recipient campaign's total income. Id., at 85. Act 64 would reduce these contributions to $200 per campaign, an average reduction of 74.5%. Ibid. And the party contributed $40,600 to its gubernatorial candidate, an amount that accounted for about 16% of the candidate's funding. Id., at 86. The Act would have reduced that contribution by 99%, to $400. Bensen added that 57% of all 1998 Senate campaigns and 30% of all House campaigns exceeded Act 64's expenditure limits, which were enacted along with the statute's contribution limits. 7 Trial Exhs. in No. 00-9159(L) etc. (CA2), Exh. 8, p.2351. Moreover, 27% of all Senate campaigns and 10% of all House campaigns spent more than double those limits. Ibid. The respondents did not contest these figures. Rather, they presented evidence that focused, not upon strongly contested campaigns, but upon the funding amounts available for the average campaign. The respondents' expert, Anthony Gierzynski, concluded, for example, that Act 64 would have a "minimal effect on ... candidates' ability to raise funds." App. 46. But he rested this conclusion upon his finding that "only a small proportion of" all contributions to all campaigns for state office "made during the last three elections would have been affected by the new limits." Id., at 47; see also id., at 51 (discussing "average amount of revenues lost to the limits" in legislative races (emphasis added)); id., at 52-53 (discussing total number of campaigns receiving contributions over Act 64's limit). The lower courts similarly relied almost exclusively on averages in assessing Act 64's effect. See 118 F.Supp. 2d, at 470 ("Approximately 88% to 96% of the campaign contributions to recent House races were under $200" (emphasis added)); id., at 478 ("Expert testimony revealed that over the last three election cycles the percentage of all candidates' contributions received over the contribution limits was less than 10%" (emphasis added)). The respondents' evidence leaves the petitioners' evidence unrebutted in certain key respects. That is because the critical question concerns not simply the average effect of contribution limits on fundraising but, more importantly, the ability of a candidate running against an incumbent officeholder to mount an effective challenge. And information about average races, rather than competitive races, is only distantly related to that question, because competitive races are likely to be far more expensive than the average race. See, e.g., N. Ornstein, T. Mann, & M. Malbin, Vital Statistics on Congress 2001-2002, pp. 89-98 (2002) (data showing that spending in competitive elections, i.e., where incumbent wins with less than 60% of vote or where incumbent loses, is far greater than in most elections, where incumbent wins with more than 60% of the vote). We concede that the record does contain some anecdotal evidence supporting the respondents' position, namely, testimony about a post-Act-64 competitive mayoral campaign in Burlington, which suggests that a challenger can "amas[s] the resources necessary for effective advocacy," Buckley, 424 U.S., at 21. But the facts of that particular election are not described in sufficient detail to offer a convincing refutation of the implication arising from the petitioners' experts' studies. Rather, the petitioners' studies, taken together with low average Vermont campaign expenditures and the typically higher costs that a challenger must bear to overcome the name-recognition advantage enjoyed by an incumbent, raise a reasonable inference that the contribution limits are so low that they may pose a significant obstacle to candidates in competitive elections. Cf. Ornstein, supra, at 87-96 (In 2000 U.S. House and Senate elections, successful challengers spent far more than the average candidate). Information about average races does not rebut that inference. Consequently, the inference amounts to one factor (among others) that here counts against the constitutional validity of the contribution limits. Second, Act 64's insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (describing constitutional importance of associating in political parties to elect candidates); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997) (same); Colorado I, 502 U.S. 279, 288 (1992) (same). Cf. Buckley, supra, at 20-22 (contribution limits constitute "only a marginal restriction" on First Amendment rights because contributor remains free to associate politically, e.g., in a political party, and "assist personally" in the party's "efforts on behalf of candidates"). The Act applies its $200 to $400 limits--precisely the same limits it applies to an individual--to virtually all affiliates of a political party taken together as if they were a single contributor. Vt. Stat. Ann., Tit. 17, §2805(a) (2002). That means, for example, that the Vermont Democratic Party, taken together with all its local affiliates, can make one contribution of at most $400 to the Democratic gubernatorial candidate, one contribution of at most $300 to a Democratic candidate for State Senate, and one contribution of at most $200 to a Democratic candidate for the State House of Representatives. The Act includes within these limits not only direct monetary contributions but also expenditures in kind: stamps, stationery, coffee, doughnuts, gasoline, campaign buttons, and so forth. See §2801(2). Indeed, it includes all party expenditures "intended to promote the election of a specific candidate or group of candidates" as long as the candidate's campaign "facilitate[s]," "solicit[s]," or "approve[s]" them. §§2809(a), (c). And a party expenditure that "primarily benefits six or fewer candidates who are associated with the" party is "presumed" to count against the party's contribution limits. §2809(d). In addition to the negative effect on "amassing funds" that we have described, see supra, at 18-21, the Act would severely limit the ability of a party to assist its candidates' campaigns by engaging in coordinated spending on advertising, candidate events, voter lists, mass mailings, even yard signs. And, to an unusual degree, it would discourage those who wish to contribute small amounts of money to a party, amounts that easily comply with individual contribution limits. Suppose that many individuals do not know Vermont legislative candidates personally, but wish to contribute, say, $20 or $40, to the State Republican Party, with the intent that the party use the money to help elect whichever candidates the party believes would best advance its ideals and interests--the basic object of a political party. Or, to take a more extreme example, imagine that 6,000 Vermont citizens each want to give $1 to the State Democratic Party because, though unfamiliar with the details of the individual races, they would like to make a small financial contribution to the goal of electing a Democratic state legislature. And further imagine that the party believes control of the legislature will depend on the outcome of three (and only three) House races. The Act forbids the party from giving $2,000 (of the $6,000) to each of its candidates in those pivotal races. Indeed, it permits the party to give no more than $200 to each candidate, thereby thwarting the aims of the 6,000 donors from making a meaningful contribution to state politics by giving a small amount of money to the party they support. Thus, the Act would severely inhibit collective political activity by preventing a political party from using contributions by small donors to provide meaningful assistance to any individual candidate. See supra, at 19. We recognize that we have previously upheld limits on contributions from political parties to candidates, in particular the federal limits on coordinated party spending. Colorado II, 533 U.S. 431. And we also recognize that any such limit will negatively affect to some extent the fund-allocating party function just described. But the contribution limits at issue in Colorado II were far less problematic, for they were significantly higher than Act 64's limits. See id., at 438-439, and n.3, 442, n.7 (at least $67,560 in coordinated spending and $5,000 in direct cash contributions for U.S. Senate candidates, at least $33,780 in coordinated spending and $5,000 in direct cash contributions for U.S. House candidates). And they were much higher than the federal limits on contributions from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties "to circumvent contribution limits that apply to individuals." Id., at 453. Act 64, by placing identical limits upon contributions to candidates, whether made by an individual or by a political party, gives to the former consideration no weight at all. We consequently agree with the District Court that the Act's contribution limits "would reduce the voice of political parties" in Vermont to a "whisper." 118 F.Supp. 2d, at 487. And we count the special party-related harms that Act 64 threatens as a further factor weighing against the constitutional validity of the contribution limits. Third, the Act's treatment of volunteer services aggravates the problem. Like its federal statutory counterpart, the Act excludes from its definition of "contribution" all "services provided without compensation by individuals volunteering their time on behalf of a candidate." Vt. Stat. Ann., Tit. 17, §2801(2) (2002). Cf. 2 U.S.C. §431(8)(B)(i) (2000 ed. and Supp. III) (similar exemption in federal campaign finance statute). But the Act does not exclude the expenses those volunteers incur, such as travel expenses, in the course of campaign activities. The Act's broad definitions would seem to count those expenses against the volunteer's contribution limit, at least where the spending was facilitated or approved by campaign officials. Vt. Stat. Ann., Tit. 17, §2801(3) (2002) ("[E]xpenditure" includes "anything of value, paid ... for the purpose of influencing an election"); §§2809(a), (c) (Any "expenditure ... intentionally facilitated by, solicited by or approved by the candidate" counts as a "contribution"). And, unlike the Federal Government's treatment of comparable requirements, the State has not (insofar as we are aware) created an exception excluding such expenses. Cf. 2 U.S.C. §§431(8)(B)(iv), (ix) (2000 ed. and Supp. III) (excluding from the definition of "contribution" volunteer travel expenses up to $1,000 and payment by political party for campaign materials used in connection with volunteer activities). The absence of some such exception may matter in the present context, where contribution limits are very low. That combination, low limits and no exceptions, means that a gubernatorial campaign volunteer who makes four or five round trips driving across the State performing volunteer activities coordinated with the campaign can find that he or she is near, or has surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two or three times during a campaign. Cf. Vt. Stat. Ann., Tit. 17, §2809(d) (2002) (excluding expenditures for such activities only up to $100). Such supporters will have to keep careful track of all miles driven, postage supplied (500 stamps equals $200), pencils and pads used, and so forth. And any carelessness in this respect can prove costly, perhaps generating a headline, "Campaign laws violated," that works serious harm to the candidate. These sorts of problems are unlikely to affect the constitutionality of a limit that is reasonably high. Cf. Buckley, 424 U.S., at 36-37 (Coordinated expenditure by a volunteer "provides material financial assistance to a candidate," and therefore "may properly be viewed as a contribution"). But Act 64's contribution limits are so low, and its definition of "contribution" so broad, that the Act may well impede a campaign's ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. id., at 22 (Federal contribution limits "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates"). Again, the very low limits at issue help to transform differences in degree into difference in kind. And the likelihood of unjustified interference in the present context is sufficiently great that we must consider the lack of tailoring in the Act's definition of "contribution" as an added factor counting against the constitutional validity of the contribution limits before us. Fourth, unlike the contribution limits we upheld in Shrink, see supra, at 16, Act 64's contribution limits are not adjusted for inflation. Its limits decline in real value each year. Indeed, in real dollars the Act's limits have already declined by about 20% ($200 in 2006 dollars has a real value of $160.66 in 1997 dollars). A failure to index limits means that limits which are already suspiciously low, see supra, at 14-17, will almost inevitably become too low over time. It means that future legislation will be necessary to stop that almost inevitable decline, and it thereby imposes the burden of preventing the decline upon incumbent legislators who may not diligently police the need for changes in limit levels to assure the adequate financing of electoral challenges. Fifth, we have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere. Indeed, other things being equal, one might reasonably believe that a contribution of say, $250 (or $450) to a candidate's campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases we have considered. See supra, at 15-17. These five sets of considerations, taken together, lead us to conclude that Act 64's contribution limits are not narrowly tailored. Rather, the Act burdens First Amendment interests by threatening to inhibit effective advocacy by those who seek election, particularly challengers; its contribution limits mute the voice of political parties; they hamper participation in campaigns through volunteer activities; and they are not indexed for inflation. Vermont does not point to a legitimate statutory objective that might justify these special burdens. We understand that many, though not all, campaign finance regulations impose certain of these burdens to some degree. We also understand the legitimate need for constitutional leeway in respect to legislative line-drawing. But our discussion indicates why we conclude that Act 64 in this respect nonetheless goes too far. It disproportionately burdens numerous First Amendment interests, and consequently, in our view, violates the First Amendment. We add that we do not believe it possible to sever some of the Act's contribution limit provisions from others that might remain fully operative. See Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932) ("invalid part may be dropped if what is left is fully operative as a law"); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (severability "essentially an inquiry into legislative intent"); Vt. Stat. Ann., Tit. 1, §215 (2003) (severability principles apply to Vermont statutes). To sever provisions to avoid constitutional objection here would require us to write words into the statute (inflation indexing), or to leave gaping loopholes (no limits on party contributions), or to foresee which of many different possible ways the legislature might respond to the constitutional objections we have found. Given these difficulties, we believe the Vermont Legislature would have intended us to set aside the statute's contribution limits, leaving the legislature free to rewrite those provisions in light of the constitutional difficulties we have identified. IV We conclude that Act 64's expenditure limits violate the First Amendment as interpreted in Buckley v. Valeo. We also conclude that the specific details of Act 64's contribution limits require us to hold that those limits violate the First Amendment, for they burden First Amendment interests in a manner that is disproportionate to the public purposes they were enacted to advance. Given our holding, we need not, and do not, examine the constitutionality of the statute's presumption that certain party expenditures are coordinated with a candidate. Vt. Stat. Ann., Tit. 17, §2809(d) (2002). Accordingly, the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings. It is so ordered. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Alito, concurring in part and concurring in the judgment. I concur in the judgment and join in Justice Breyer's opinion except for Parts II-B-1 and II-B-2. Contrary to the suggestion of those sections, respondents' primary defense of Vermont's expenditure limits is that those limits are consistent with Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See Brief for William H. Sorrell etal. in Nos. 04-1528 and 04-1530, pp. 15-28 (hereinafter Sorrell Brief); Brief for Vermont Public Interest Research Group etal. in Nos. 04-1528 and 04-1530, pp. 5-36 (hereinafter VPIRG Brief). Only as a backup argument, an afterthought almost, do respondents make a naked plea for us to "revisit Buckley." Sorrell Brief 28; VPIRG Brief 36. This is fairly incongruous, given that respondents' defense of Vermont's contribution limits rests squarely on Buckley and later decisions that built on Buckley, and yet respondents fail to explain why it would be appropriate to reexamine only one part of the holding in Buckley. More to the point, respondents fail to discuss the doctrine of stare decisis or the Court's cases elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional decision. Indeed, only once in 99 pages of briefing from respondents do the words "stare decisis" appear, and that reference is in connection with contribution limits. See Sorrell Brief 31. Such an incomplete presentation is reason enough to refuse respondents' invitation to reexamine Buckley. See United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996). Whether or not a case can be made for reexamining Buckley in whole or in part, what matters is that respondents do not do so here, and so I think it unnecessary to reach the issue. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Kennedy, concurring in the judgment. The Court decides the constitutionality of the limitations Vermont places on campaign expenditures and contributions. I agree that both limitations violate the First Amendment. As the plurality notes, our cases hold that expenditure limitations "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." Buckley v. Valeo, 424 U.S. 1, 58-59 (1976) (per curiam); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 618 (1996) (principal opinion); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985). The parties neither ask the Court to overrule Buckley in full nor challenge the level of scrutiny that decision applies to campaign contributions. The exacting scrutiny the plurality applies to expenditure limitations, however, is appropriate. For the reasons explained in the plurality opinion, respondents' attempts to distinguish the present limitations from those we have invalidated are unavailing. The Court has upheld contribution limits that do "not come even close to passing any serious scrutiny." Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410 (2000) (Kennedy, J., dissenting). Those concerns aside, Vermont's contributions, as the plurality's detailed analysis indicates, are even more stifling than the ones that survived Shrink's unduly lenient review. The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than it solves. On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not. Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance. On a broader, systemic level political parties have been denied basic First Amendment rights. See, e.g., McConnell v. Federal Election Comm'n, 540 U.S. 93, 286-287, 313 (2003) (Kennedy, J., concurring in judgment in part and dissenting in part). Entering to fill the void have been new entities such as political action committees, which are as much the creatures of law as of traditional forces of speech and association. Those entities can manipulate the system and attract their own elite power brokers, who operate in ways obscure to the ordinary citizen. Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Thomas, with whom Justice Scalia joins, concurring in the judgment. Although I agree with the plurality that Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002) (Act 64), is unconstitutional, I disagree with its rationale for striking down that statute. Invoking stare decisis, the plurality rejects the invitation to overrule Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).1 It then applies Buckley to invalidate the expenditure limitations and, less persuasively, the contribution limitations. I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. The illegitimacy of Buckley is further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment. Accordingly, I concur only in the judgment. I I adhere to my view that this Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410-418 (2000) (dissenting opinion) (Shrink); Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 465-466 (2001) (Colorado II) (dissenting opinion); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 635-644 (1996) (Colorado I) (opinion concurring in judgment and dissenting in part). "[U]nlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits." Id., at 640. The Buckley Court distinguished contributions from expenditures based on the presence of an intermediary between a contributor and the speech eventually produced. But that reliance is misguided, given that "[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender's message." Colorado I, supra, at 638-639; Shrink, supra, at 413-418 (Thomas, J., dissenting). Likewise, Buckley's suggestion that contribution caps only marginally restrict speech, because "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support," 424 U.S., at 21, even if descriptively accurate, does not support restrictions on contributions. After all, statements of general support are as deserving of constitutional protection as those that communicate specific reasons for that support. Colorado I, supra, at 639-640 (opinion of Thomas, J.); Shrink, supra, at 414-415, and n.3 (Thomas, J., dissenting). Accordingly, I would overrule Buckley and subject both the contribution and expenditure restrictions of Act 64 to strict scrutiny, which they would fail. See Colorado I, supra, at 640-641 (opinion of Thomas, J.) ("I am convinced that under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process . . . are unconstitutional"). See also Colorado II, supra, at 465-466 (Thomas, J., dissenting). II The plurality opinion, far from making the case for Buckley as a rule of law, itself demonstrates that Buckley's limited scrutiny of contribution limits is "insusceptible of principled application," and accordingly is not entitled to stare decisis effect. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 599 (1996) (Scalia, J., dissenting). Indeed, "'when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.'" Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (plurality opinion) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991); internal quotation marks omitted). Today's newly minted, multifactor test, particularly when read in combination with the Court's decision in Shrink, supra, places this Court in the position of addressing the propriety of regulations of political speech based upon little more than its impression of the appropriate limits. The plurality sets forth what appears to be a two-step process for evaluating the validity of contribution limits: First, determine whether there are "danger signs" in a particular case that the limits are too low; and, second, use "independent judicial judgment" to "review the record independently and carefully with an eye towards assessing the statute's 'tailoring,' that is, towards assessing the proportionality of the restrictions." Ante, at 14. Neither step of this test can be reduced to a workable inquiry to be performed by States attempting to comply with this Court's jurisprudence. As to the first step, it is entirely unclear how to determine whether limits are so low as to constitute "danger signs" that require a court to "examine the record independently and carefully." Ante, at 18. The plurality points to several aspects of the Act that support its conclusion that such signs are present here: (1) the limits are set per election cycle, rather than divided between primary and general elections; (2) the limits apply to contributions from political parties; (3) the limits are the lowest in the Nation; and (4) the limits are below those we have previously upheld. Ante, at 15-19. The first two elements of the Act are indeed constitutionally problematic, but they have no bearing on whether the contribution limits are too low. The first substantially advantages candidates in a general election who did not face a serious primary challenge. In practice, this restriction will generally suppress more speech by challengers than by incumbents, without serving the interests the Court has recognized as compelling, i.e., the prevention of corruption or the appearance thereof. Cf. B. Smith, Unfree Speech: The Folly of Campaign Finance Reform 50-51 (2001) (hereinafter Smith) (describing the ability of incumbents to amass money early, discouraging serious challengers from entering a race). The second element has no relation to these compelling interests either, given that "'[t]he very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes.'" Colorado II, 533 U.S., at 476 (Thomas, J., dissenting) (citing Colorado I, 518 U.S., at 646 (Thomas, J., concurring in judgment and dissenting in part)). That these provisions are unconstitutional, however, does not make the contribution limits on individuals unconstitutionally low. We are left, then, with two reasons to scrutinize Act 64's limitations: They are lower than those of other States, and lower than those we have upheld in previous cases, i.e., Buckley and Shrink. But the relative limits of other States cannot be the key factor, for such considerations are nothing more than a moving target. After all, if the Vermont Legislature simply persuaded several other States to lower their contribution limits to parallel Act 64, then the Act, which would still "significantly restrict the amount of funding available for challengers to run competitive campaigns," ante, at 19, would survive this aspect of the majority's proposed test. Nor is the relationship of these limits to those in Buckley and Shrink a critical fact. In Shrink, the Court specifically determined that Buckley did not "set a minimum constitutional threshold for contribution limits," rejecting such a contention as a "fundamental misunderstanding of what we held." 528 U.S., at 396. The plurality's current treatment of the limits in Shrink as a constitutional minimum, or at least as limits below which "danger signs" are present, thus cannot be reconciled with Shrink itself. Having nevertheless concluded that these "danger signs" require us to scrutinize the record, the plurality embarks on an odd review of the contribution limits, combining unrelated factors to determine that, "taken together," ante, at 19, the restrictions of Act 64 are not closely drawn to meet their objectives. Two of these factors simply cause the already stringent limitations on individual contributions to be more stringent; i.e., volunteer services count toward the contribution limit, ante, at 25-27, and the limits do not change with inflation, so they will become even more stringent in time, ante, at 27.2 While these characteristics confirm the plurality's impression that these limits are, indeed, quite low, they have nothing whatsoever to do with whether the restrictions are closely drawn to meet their objectives. The plurality would presumably uphold a limit on contributions of $1 million, even if volunteer services counted toward that limit and the limit did not change with inflation. Characterizing these facts as shifting Act 64's limits from "suspiciously low" to "too low," ibid., provides no insight on how to draw this constitutional line. The plurality next departs from the general applicability of the contribution limits entirely, and notes the substantial interference of the contribution limits with the activities of parties. Again, I do not dispute that the limitation on party contributions is unconstitutional; as I have previously noted, such limitations are unconstitutional even under Buckley. See Colorado II, supra, at 476-477. But it is entirely unclear why the mere fact that the "suspiciously low" contribution limits also apply to parties should mean that those limits are in fact "too low" when they are applied to individuals. If the limits impermissibly intrude upon the associational rights of parties, then the limits are unconstitutional as applied to parties. But limits on individuals cannot be transformed from permissible to too low simply because they also apply to political parties.3 We are left, then, with two arguably relevant points to transform these contribution limits from the realm of the "suspicious" to the realm of the impermissible. First, the limits affect a substantial portion of the money given to challengers. But contribution limits always disproportionately burden challengers, who often have smaller bases of support than incumbents. See Smith, 66-70. In Shrink, the Court expressly rejected the argument that a negative impact on a challenger could render a contribution limit invalid, relying on the same sort of analysis of the "average effect of contribution limits on fundraising," ante, at 21, that the plurality today rejects. See 528 U.S., at 396 (noting that 97.62% of all contributors for state auditor made contributions of less than $2,000, and that "[e]ven if we were to assume that the contribution limits affected respondent['s] ability to wage a competitive campaign ... a showing of one affected individual does not point up a system of suppressed political advocacy "that would be unconstitutional under Buckley"). Cf. id., at 420 (Thomas, J., dissenting) ("The Court in Buckley provided no basis for suppressing the speech of an individual candidate simply because other candidates (or candidates in the aggregate) may succeed in reaching the voting public . . . any such reasoning would fly in the face of the premise of our political system--liberty vested in individual hands safeguards the functioning of our democracy"). An individual's First Amendment right is infringed whether his speech is decreased by 5% or 95%, and whether he suffers alone or shares his violation with his fellow citizens. Certainly, the First Amendment does not authorize us to judge whether a restriction of political speech imposes a sufficiently severe disadvantage on challengers that a candidate should be able to complain. See Shrink, supra, at 427 (Thomas, J., dissenting) ("[C]ourts have no yardstick by which to judge the proper amount and effectiveness of campaign speech"). The plurality's final justification fares no better. Arguing that Vermont offers no justification for imposing a limit lower than that imposed in any other State is simply another way of saying that the benchmark for whether a contribution limitation is constitutional is what other States have imposed. As I have noted above, supra, at 6, tying individuals' First Amendment rights to the presence or absence of similar laws in other States is inconsistent with the First Amendment. The plurality recognizes that the burdens which lead it to invalidate Act 64's contribution limits are present under "many, though not all, campaign finance regulations." Ante, at 28. As a result, the plurality does not purport to offer any single touchstone for evaluating the constitutionality of such laws. Indeed, its discussion offers nothing resembling a rule at all. From all appearances, the plurality simply looked at these limits and said, in its "independent judicial judgment," ante, at 14, that they are too low. The atmospherics--whether they vary with inflation, whether they are as high as those in other States or those in Shrink and Buckley, whether they apply to volunteer activities and parties--no doubt help contribute to the plurality's sentiment. But a feeling does not amount to a workable rule of law. This is not to say that the plurality errs in concluding that these limits are too low to satisfy even Buckley's lenient standard. Indeed, it is almost impossible to imagine that any legislator would ever find his scruples overcome by a $201 donation. See Shrink, supra, at 425 (Thomas, J., dissenting) ("I cannot fathom how a $251 contribution could pose a substantial risk of 'secur[ing] a political quid pro quo'" (quoting Buckley, 424 U.S., at 26)). And the statistics relied on by the plurality indeed reveal that substantial resources will be lost by candidates running campaigns under these limits. See ante, at 19-22. Given that these contribution limits severely impinge on the ability of candidates to run campaigns and on the ability of citizens to contribute to campaigns, and do so without any demonstrable need to avoid corruption, they cannot possibly satisfy even Buckley's ambiguous level of scrutiny. But the plurality's determination that this statute clearly lies on the impermissible side of the constitutional line gives no assistance in drawing this line, and it is clear that no such line can be drawn rationally. There is simply no way to calculate just how much money a person would need to receive before he would be corrupt or perceived to be corrupt (and such a calculation would undoubtedly vary by person). Likewise, there is no meaningful way of discerning just how many resources must be lost before speech is "disproportionately burden[ed]." Ante, at 28. Buckley, as the plurality has applied it, gives us license to simply strike down any limits that just seem to be too stringent, and to uphold the rest. The First Amendment does not grant us this authority. Buckley provides no consistent protection to the core of the First Amendment, and must be overruled. *  *  * For these reasons, I concur only in the judgment. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Stevens, dissenting. Justice Breyer and Justice Souter debate whether the per curiam decision in Buckley v. Valeo, 424 U.S. 1 (1976), forecloses any constitutional limitations on candidate expenditures. This is plainly an issue on which reasonable minds can disagree. The Buckley Court never explicitly addressed whether the pernicious effects of endless fundraising can serve as a compelling state interest that justifies expenditure limits, post, at 2 (Souter, J., dissenting), yet its silence, in light of the record before it, suggests that it implicitly treated this proposed interest insufficient, ante, at 11 (plurality opinion of Breyer, J.). Assuming this to be true, however, I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it. I have not reached this conclusion lightly. As Justice Breyer correctly observes, stare decisis is a principle of "'fundamental importance.'" Ante, at 9. But it is not an inexorable command, and several factors, taken together, provide special justification for revisiting the constitutionality of statutory limits on candidate expenditures. To begin with, Buckley's holding on expenditure limits itself upset a long-established practice. For the preceding 65 years, congressional races had been subject to statutory limits on both expenditures and contributions. See 37 Stat. 28; Federal Corrupt Practices Act of 1925, 43 Stat. 1073; Federal Election Campaign Finance Act of 1971, 86 Stat. 5; Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263; United States v. Automobile Workers, 352 U.S. 567, 575-576 (1957); McConnell v. Federal Election Comm'n, 540 U.S. 93, 115-117 (2003). As the Court of Appeals had recognized in Buckley v. Valeo, 519 F.2d 821, 859 (CADC 1975) (en banc) (per curiam), our earlier jurisprudence provided solid support for treating these limits as permissible regulations of conduct rather than speech. Ibid. (discussing Burroughs v. United States, 290 U.S. 534 (1934), and United States v. Harriss, 347 U.S. 612 (1954)); see also 519 F.2d, at 841, and n. 41, 851, and n. 68. While Buckley's holding on contribution limits was consistent with this backdrop, its holding on expenditure limits "involve[d] collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience," Helvering v. Hallock, 309 U.S. 106, 119 (1940). There are further reasons for reexamining Buckley's holding on candidate expenditure limits that do not apply to its holding on candidate contribution limits. Although we have subsequently reiterated the line Buckley drew between these two types of limits, we have done so primarily in cases affirming the validity of contribution limits or their functional equivalents. See McConnell, 533 U.S. 431, 440-442 (2001); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 386-387 (2000); cf. California Medical Assn. v. Federal Election Comm'n, 453 U.S. 182, 194-195 (1981) (plurality opinion). In contrast, these are our first post-Buckley cases that raise the constitutionality of expenditure limits on the amounts that candidates for office may spend on their own campaigns.1 Accordingly, while we have explicitly recognized the importance of stare decisis in the context of Buckley's holding on contribution limits, McConnell, 539 U.S. 558, 577 (2003). See also Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (plurality opinion) (noting lessened stare decisis concern where "it is hard to imagine how any action taken in reliance upon [the prior case] could conceivably be frustrated"). Perhaps in partial recognition of these points, Justice White refused to abandon his opposition to Buckley's holding on expenditure limits. See Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 271 (1986); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 507-512 (1985) (dissenting opinion). He believed Buckley deeply wrong on this issue because it confused "the identification of speech with its antecedents." National Conservative Political Action Comm., 470 U.S., at 508. Over the course of his steadfast campaign, he converted at least one other Buckley participant to this position, see National Conservative Political Action Comm., 470 U.S., at 518-521 (Marshall, J., dissenting), and his reasoning has since persuaded me--the nonparticipating Member of the Buckley Court--as well. As Justice White recognized, it is quite wrong to equate money and speech. Buckley, 424 U.S., at 263 (opinion concurring in part and dissenting in part). To thecontrary, "The burden on actual speech imposed by limitations on the spending of money is minimal and indirect. All rights of direct political expression and advocacy are retained. Even under the campaign laws as originally enacted, everyone was free to spend as much as they chose to amplify their views on general political issues, just not specific candidates. The restrictions, to the extent they do affect speech, are viewpoint-neutral and indicate no hostility to the speech itself or its effects." National Conservative Political Action Comm., 470 U.S., at 508-509 (White, J., dissenting). Accordingly, these limits on expenditures are far more akin to time, place, and manner restrictions than to restrictions on the content of speech. Like Justice White, I would uphold them "so long as the purposes they serve are legitimate and sufficiently substantial." Buckley, 424 U.S., at 264. Buckley's conclusion to the contrary relied on the following oft-quoted metaphor: "Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline." Id., at 19, n.18. But, of course, while a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this budget is above a certain threshold, a candidate can exercise due care to ensure that her message reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless sound-bites of trivial information in order to provide voters with reasons to support her. Indeed, the examples of effective speech in the political arena that did not depend on any significant expenditure by the campaigner are legion. It was the content of William Jennings Bryan's comments on the "Cross of Gold"--and William McKinley's responses delivered from his front porch in Canton, Ohio--rather than any expenditure of money that appealed to their cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to engage in the debates with Stephen Douglas and Richard Nixon that may well have determined the outcomes of Presidential elections. When the seasoned campaigners who were Members of the Congress that endorsed the expenditure limits in the Federal Election Campaign Act Amendments of 1974 concluded that a modest budget would not preclude them from effectively communicating with the electorate, they necessarily rejected the Buckley metaphor. These campaigners also identified significant government interests favoring the imposition of expenditure limits. Not only do these limits serve as an important complement to corruption-reducing contribution limits, see id., at 264 (opinion of White, J.), but they also "protect equal access to the political arena, [and] free candidates and their staffs from the interminable burden of fundraising." Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 649-650 (1996) (Stevens, J., dissenting). These last two interests are particularly acute. When campaign costs are so high that only the rich have the reach to throw their hats into the ring, we fail "to protect the political process from undue influence of large aggregations of capital and to promote individual responsibility for democratic government." Automobile Workers, 352 U.S., at 590. States have recognized this problem,2 but Buckley's perceived ban on expenditure limits severely limits their options in dealing with it. The interest in freeing candidates from the fundraising straitjacket is even more compelling. Without expenditure limits, fundraising devours the time and attention of political leaders, leaving them too busy to handle their public responsibilities effectively. That fact was well recognized by backers of the legislation reviewed in Buckley, by the Court of Appeals judges who voted to uphold the expenditure limitations in that statute, and by Justice White--who not incidentally had personal experience as an active participant in a Presidential campaign. Cf. 519 F.2d, at 838 (and citations to legislative history contained therein); 424 U.S., at 265 (opinion of White, J.). The validity of their judgment has surely been confirmed by the mountains of evidence that has been accumulated in recent years concerning the time that elected officials spend raising money for future campaigns and the adverse effect of fundraising on the performance of their official duties.3 Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection. Buckley's cursory suggestion to the contrary, id., at 56-57, failed to take into account the mixed evidence before it on this issue. See 519 F.2d, at 861, 862 (detailing how "[t]he material available to the court looks both ways"). And only by "permit[ting] States nationwide to experiment with these critically needed reforms,"--as 18 States urge us to do--will we enable further research on how expenditure limits relate to our incumbent reelection rates. See Brief for State of Connecticut etal. as Amici Curiae 3.4 In the meantime, a legislative judgment that "enough is enough" should command the greatest possible deference from judges interpreting a constitutional provision that, at best, has an indirect relationship to activity that affects the quantity--rather than the quality or the content--of repetitive speech in the marketplace of ideas. One final point bears mention. Neither the opinions in Buckley nor those that form today's cacophony pay heed to how the Framers would have viewed candidate expenditure limits. This is not an unprincipled approach, as the historical context is "usually relevant but not necessarily dispositive." Georgia v. Randolph, 547 U.S. ___, ___ (2006) (slip op., at 1) (Stevens, J., concurring). This is particularly true of contexts that are so different. At the time of the framing the accepted posture of the leading candidates was one of modesty, acknowledging a willingness to serve rather than a desire to compete. Speculation about how the Framers would have legislated if they had foreseen the era of televised sound-bites thus cannot provide us with definitive answers. Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress' authority.5 And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews. For the foregoing reasons, I agree with Justice Souter that it would be entirely appropriate to allow further proceedings on expenditure limits to go forward in these cases. For the reasons given in Parts II and III of his dissent, I also agree that Vermont's contribution limits and presumption of coordinated expenditures by political parties are constitutional, and so join those portions of his opinion. NEIL RANDALL, etal., PETITIONERS 04-1528v. WILLIAM H. SORRELL etal. VERMONT REPUBLICAN STATE COMMITTEE, etal.,PETITIONERS 04-1530v. WILLIAM H. SORRELL etal. WILLIAM H. SORRELL, etal., PETITIONERS 04-1697v. NEIL RANDALL etal. on writs of certiorari to the united states court ofappeals for the second circuit [June 26, 2006] Justice Souter, with whom Justice Ginsburg joins, and with whom Justice Stevens joins as to Parts II and III, dissenting. In 1997, the Legislature of Vermont passed Act 64 after a series of public hearings persuaded legislators that rehabilitating the State's political process required campaign finance reform. A majority of the Court today decides that the expenditure and contribution limits enacted are irreconcilable with the Constitution's guarantee of free speech. I would adhere to the Court of Appeals's decision to remand for further enquiry bearing on the limitations on candidates' expenditures, and I think the contribution limits satisfy controlling precedent. I respectfully dissent. I Rejecting Act 64's expenditure limits as directly contravening Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), ante, at 8-11 (opinion of Breyer, J.), is at least premature. We said in Buckley that "expenditure limitations impose far greater restraints on the freedom of speech and association than do ... contribution limitations," 424 U.S., at 44, but the Buckley Court did not categorically foreclose the possibility that some spending limit might comport with the First Amendment. Instead, Buckley held that the constitutionality of an expenditure limitation "turns on whether the governmental interests advanced in its support satisfy the [applicable] exacting scrutiny." Ibid. In applying that standard in Buckley itself, the Court gave no indication that it had given serious consideration to an aim that Vermont's statute now pursues: to alleviate the drain on candidates' and officials' time caused by the endless fundraising necessary to aggregate many small contributions to meet the opportunities for ever more expensive campaigning. Instead, we dwelt on rejecting the sufficiency of interests in reducing corruption, equalizing the financial resources of candidates, and capping the overall cost of political campaigns, see id., at 55-57. Although Justice White went a step further in dissenting from the Court on expenditures, and made something of the interest in getting officials off the "treadmill" driven by the "obsession with fundraising," see id., at 265 (opinion concurring in part and dissenting in part), this lurking issue was not treated as significant on the expenditure question in the per curiam opinion. Whatever the observations made to the Buckley Court about the effect of fundraising on candidates' time, the Court did not squarely address a time-protection interest as support for the expenditure limits, much less one buttressed by as thorough a record as we have here.** Vermont's argument therefore does not ask us to overrule Buckley; it asks us to apply Buckley's framework to determine whether its evidence here on a need to slow the fundraising treadmill suffices to support the enacted limitations. Vermont's claim is serious. Three decades of experience since Buckley have taught us much, and the findings made by the Vermont Legislature on the pernicious effect of the nonstop pursuit of money are significant. See, e.g., Act 64, H. 28, Legislative Findings and Intent, at App. 20 (finding that "candidates for statewide offices are spending inordinate amounts of time raising campaign funds"); ibid. (finding that "[r]obust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral process have decreased as campaign expenditures have increased"); see also Landell v. Sorrell, 118 F.Supp. 2d 459, 467 (Vt. 2000) (noting testimony of Senator Shumlin before the legislature that raising funds "was one of the most distasteful things that I've had to do in public service" (internal quotation marks omitted)); Landell v. Sorrell, 382 F.3d 91, 123 (CA2 2004) (public officials testified at trial that "elected officials spend time with donors rather than on their official duties"). The legislature's findings are surely significant enough to justify the Court of Appeals's remand to the District Court to decide whether Vermont's spending limits are the least restrictive means of accomplishing what the court unexceptionably found to be worthy objectives. See id., at 124-125, 135-137. The District Court was instructed to examine a variety of outstanding issues, including alternatives considered by Vermont's Legislature and the reasons for rejecting them. See id., at 136. Thus, the constitutionality of the expenditure limits was not conclusively decided by the Second Circuit, and I believe the evidentiary work that remained to be done would have raised the prospect for a sound answer to that question, whatever the answer might have been. Instead, we are left with an unresolved question of narrow tailoring and with consequent doubt about the justifiability of the spending limits as necessary and appropriate correctives. This is not the record on which to foreclose the ability of a State to remedy the impact of the money chase on the democratic process. I would not, therefore, disturb the Court of Appeals's stated intention to remand. II Although I would defer judgment on the merits of the expenditure limitations, I believe the Court of Appeals correctly rejected the challenge to the contribution limits. Low though they are, one cannot say that "the contribution limitation[s are] so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 397 (2000). The limits set by Vermont are not remarkable departures either from those previously upheld by this Court or from those lately adopted by other States. The plurality concedes that on a per-citizen measurement Vermont's limit for statewide elections "is slightly more generous," ante, at 18, than the one set by the Missouri statute approved by this Court in Shrink, supra. Not only do those dollar amounts get more generous the smaller the district, they are consistent with limits set by the legislatures of many other States, all of them with populations larger than Vermont's, some significantly so. See, e.g., Montana Right to Life Assn. v. Eddleman, 343 F.3d 1085, 1088 (CA9 2003) (approving $400 limit for candidates filed jointly for Governor and Lieutenant Governor, since increased to $500, see Mont. Code Ann. §13-37-216(1)(a)(i) (2005)); Daggett v. Commission on Governmental Ethics and Election Practices, 205 F.3d 445, 452 (CA1 2000) ($500 limit for gubernatorial candidates in Maine); Minnesota Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1113 (CA8 2005) ($500 limit on contributions to legislative candidates in election years, $100 in other years); Florida Right to Life, Inc. v. Mortham, No. 6:98-770-CV, 2000 WL 33733256, *3 (MD Fla., Mar. 20, 2000) ($500 limit on contributions to any state candidate). The point is not that this Court is bound by judicial sanctions of those numbers; it is that the consistency in legislative judgment tells us that Vermont is not an eccentric party of one, and that this is a case for the judicial deference that our own precedents say we owe here. See Shrink, supra, at 402 (Breyer, J., concurring) ("Where a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments"); see also ante, at 14 (plurality opinion) ("[O]rdinarily we have deferred to the legislature's determination of [matters related to the costs and nature of running for office]"). To place Vermont's contribution limits beyond the constitutional pale, therefore, is to forget not only the facts of Shrink, but also our self-admonition against second-guessing legislative judgments about the risk of corruption to which contribution limits have to be fitted. See Shrink, supra, at 391, and n.5. And deference here would surely not be overly complaisant. Vermont's legislators themselves testified at length about the money that gets their special attention, see Act 64, H. 28, Legislative Findings and Intent, at App. 20 (finding that "[s]ome candidates and elected officials, particularly when time is limited, respond and give access to contributors who make large contributions in preference to those who make small or no contributions"); 382 F.3d, at 122 (testimony of Elizabeth Ready: "If I have only got an hour at night when I get home to return calls, I am much more likely to return [a donor's] call than I would [a non-donor's] . ... [W]hen you only have a few minutes to talk, there are certain people that get access" (alterations in original)). The record revealed the amount of money the public sees as suspiciously large, see 118 F.Supp. 2d, at 479-480 ("The limits set by the legislature ... accurately reflect the level of contribution considered suspiciously large by the Vermont public. Testimony suggested that amounts greater than the contribution limits are considered large by the Vermont public"). And testimony identified the amounts high enough to pay for effective campaigning in a State where the cost of running tends to be on the low side, see id., at 471 ("In the context of Vermont politics, $200, $300, and $400 donations are clearly large, as the legislature determined. Small donations are considered to be strong acts of political support in this state. William Meub testified that a contribution of $1 is meaningful because it represents a commitment by the contributor that is likely to become a vote for the candidate. Gubernatorial candidate Ruth Dwyer values the small contributions of $5 so much that she personally sends thank you notes to those donors"); id., at 470-471 ("In Vermont, many politicians have run effective and winning campaigns with very little money, and some with no money at all.... Several candidates, campaign managers, and past and present government officials testified that they will be able to raise enough money to mount effective campaigns in the system of contribution limits established by Act 64"); id., at 472 ("Spending in Vermont statewide elections is very low ... . Vermont ranks 49th out of the 50 states in campaign spending. The majority of major party candidates for statewide office in the last three election cycles spent less than what the spending limits of Act 64 would allow.... In Vermont legislative races, low-cost methods such as door-to-door campaigning are standard and even expected by the voters"). Still, our cases do not say deference should be absolute. We can all imagine dollar limits that would be laughable, and per capita comparisons that would be meaningless because aggregated donations simply could not sustain effective campaigns. The plurality thinks that point has been reached in Vermont, and in particular that the low contribution limits threaten the ability of challengers to run effective races against incumbents. Thus, the plurality's limit of deference is substantially a function of suspicion that political incumbents in the legislature set low contribution limits because their public recognition and easy access to free publicity will effectively augment their own spending power beyond anything a challenger can muster. The suspicion is, in other words, that incumbents cannot be trusted to set fair limits, because facially neutral limits do not in fact give challengers an even break. But this received suspicion is itself a proper subject of suspicion. The petitioners offered, and the plurality invokes, no evidence that the risk of a pro-incumbent advantage has been realized; in fact, the record evidence runs the other way, as the plurality concedes. See ante, at 22 ("the record does contain some anecdotal evidence supporting the respondents' position, namely, testimony about a post-Act-64 competitive mayoral campaign in Burlington, which suggests that a challenger can 'amas[s] the resources necessary for effective advocacy,' Buckley, 424 U.S., at 21"). I would not discount such evidence that these low limits are fair to challengers, for the experience of the Burlington race is confirmed by recent empirical studies addressing this issue of incumbent's advantage. See, e.g., Eom & Gross, Contribution Limits and Disparity in Contributions Between Gubernatorial Candidates, 59 Pol. Research Q. 99, 99 (2006) ("Analyses of both the number of contributors and the dollar amount of contributions [to gubernatorial candidates] suggest no support for an increased bias in favor of incumbents resulting from the presence of campaign contribution limits. If anything, contribution limits can work to reduce the bias that traditionally works in favor of incumbents. Also, contribution limits do not seem to increase disparities between gubernatorial candidates in general" (emphasis deleted)); Bardwell, Money and Challenger Emergence in Gubernatorial Primaries, 55 Pol. Research Q. 653 (2002) (finding that contribution limits favor neither incumbents nor challengers); Hogan, The Costs of Representation in State Legislatures: Explaining Variations in Campaign Spending, 81 Soc. Sci. Q. 941, 952 (2000) (finding that contribution limits reduce incumbent spending but have no effect on challenger or open-seat candidate spending). The Legislature of Vermont evidently tried to account for the realities of campaigning in Vermont, and I see no evidence of constitutional miscalculation sufficient to dispense with respect for its judgments. III Four issues of detail call for some attention, the first being the requirement that a volunteer's expenses count against the person's contribution limit. The plurality certainly makes out the case that accounting for these expenses will be a colossal nuisance, but there is no case here that the nuisance will noticeably limit volunteering, or that volunteers whose expenses reach the limit cannot continue with their efforts subject to charging their candidates for the excess. Granted, if the provisions for contribution limits were teetering on the edge of unconstitutionality, Act 64's treatment of volunteers' expenses might be the finger-flick that gives the fatal push, but it has no greater significance than that. Second, the failure of the Vermont law to index its limits for inflation is even less important. This challenge is to the law as it is, not to a law that may have a different impact after future inflation if the state legislature fails to bring it up to economic date. Third, subjecting political parties to the same contribution limits as individuals does not condemn the Vermont scheme. What we said in Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 454-455 (2001), dealing with regulation of coordinated expenditures, goes here, too. The capacity and desire of parties to make large contributions to competitive candidates with uphill fights are shared by rich individuals, and the risk that large party contributions would be channels to evade individual limits cannot be eliminated. Nor are these reasons to support the party limits undercut by claims that the restrictions render parties impotent, for the parties are not precluded from uncoordinated spending to benefit their candidates. That said, I acknowledge the suggestions in the petitioners' briefs that such restrictions in synergy with other influences weakening party power would justify a wholesale reexamination of the situation of party organization today. But whether such a comprehensive reexamination belongs in courts or only in legislatures is not an issue presented by these cases. Finally, there is the issue of Act 64's presumption of coordinated expenditures on the part of political parties, Vt. Stat. Ann., Tit. 17, §2809(d) (2002). The plurality has no occasion to reach it; I do reach it, but find it insignificant. The Republican Party petitioners complain that the related expenditure provision imposes on both the candidate and the party the burden in some circumstances to prove that coordination of expenditure did not take place, thus threatening to charge against a candidate's spending limits some party expenditures that are in fact independent, with an ultimate consequence of chilling speech. See Brief for Respondent/Cross-Petitioner Vermont Republican State Committee etal. 45-46. On the contrary, however, we can safely take the presumption on the representation to this Court by the Attorney General of Vermont: the law imposes not a burden of persuasion but merely one of production, leaving the presumption easily rebuttable. See Tr. of Oral Arg. 39-41 (representation that the presumption disappears once credible evidence, such as an affidavit, is offered); see also Brief for Respondent/Cross-Petitioner William H. Sorrell etal. 48 (the presumption "contributes no evidence and disappears when facts appear. In a case covered by the presumption, a political party need only present some evidence that the presumed fact is not true and the presumption vanishes.... Simple testimony that the expenditure was not coordinated would suffice to defeat the presumption" (citations, internal quotation marks, and alterations omitted)). As so understood, the rebuttable presumption clearly imposes no onerous burden like the conclusive presumption in Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 619 (1996) (principal opinion), or the nearly conclusive one in Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 785-786 (1988). Requiring the party in possession of the pertinent facts to come forward with them, as easily as by executing an affidavit, does not rise to the level of a constitutionally offensive encumbrance here. Cf. County Court of Ulster Cty. v. Allen, 442 U.S. 140, 158, n. 16 (1979) ("To the extent that a presumption imposes an extremely low burden of production--e.g., being satisfied by 'any' evidence--it may well be that its impact is no greater than that of a permissive inference"). IV Because I would not pass upon the constitutionality of Vermont's expenditure limits prior to further enquiry into their fit with the problem of fundraising demands on candidates, and because I do not see the contribution limits as depressed to the level of political inaudibility, I respectfully dissent. FOOTNOTESFootnote *Together with No. 04-1530, Vermont Republican State Committee etal. v. Sorrell etal., and No. 04-1697, Sorrell etal. v. Randall etal., also on certiorari to the same court. FOOTNOTESFootnote 1Although the plurality's stare decisis analysis is limited to Buckley's treatment of expenditure limitations, its reasoning cannot be so confined, and would apply equally to Buckley's standard for evaluating contribution limits. See ante, at 10 (noting, inter alia, that Buckley has engendered "considerable reliance" that would be "dramatically undermine[d]" by overruling it now). Footnote 2Ironically, the plurality is troubled by the fact that the absence of a provision adjusting the limits for inflation means that the real value of the limits will decline, and that "the burden of preventing the decline [lies] upon incumbent legislators who may not diligently police the need for changes in limit levels to assure the adequate financing of electoral challenges." Ante, at 27. It is impossible to square this wariness of incumbents' disinclination to enact future laws protecting challengers with the plurality's deference to those same incumbents when they make empirical judgments regarding "the precise restriction necessary to carry out the statute's legitimate objectives" in the first place. Ante, at 14. Footnote 3The plurality's connection of these two factors implies that it is concerned not with the impact on the speech of contributors, but solely with the speech of candidates, for whom the two facts might be connected. See ante, at 19. Indeed, the plurality notably omits interference with participation in campaigns through monetary contributions from the list of reasons the Act is unconstitutional. See id., at 19, 27. But contributors, too, have a right to free speech. See Colorado I 518 U.S. 604, 637 (1996) (Thomas, J., concurring in judgment and dissenting in part) ("If an individual is limited in the amount of resources he can contribute to the pool, he is most certainly limited in his ability to associate for purposes of effective advocacy"). Even Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), recognizes that contribution limits restrict the free speech of contributors, even if it understates the significance of this restriction. See id., at 20-21 ("[A] limitation upon the amount that any one person or group may contribute to a candidate ... entails only a marginal restriction upon the contributor's ability to engage in free communication"). FOOTNOTESFootnote 1We have, of course, invalidated limits on independent expenditures by third persons. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480 (1985); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996); cf. Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). In these cases the principal parties accepted Buckley's holding on candidate expenditure limits and gave us no cause to consider how much weight to give stare decisis. Footnote 2See Brief for State of Connecticut etal. as Amici Curiae 16-17 (citing Ariz. Rev. Stat. §16-940(B)(7); Colo. Rev. Stat. §1-45-102; Neb. Rev. Stat. §32-1602(1); and R.I. Gen. Laws §17-25-18). Footnote 3See, e.g., Alexander, Let Them Do Their Jobs: The Compelling Government Interest in Protecting the Time of Candidates and Elected Officials, 37 Loyola U. Chi. L.J. 669, 673-683 (2006); see also post, at 3 (Souter, J., dissenting). Footnote 4Indeed, the example of the city of Albuquerque suggests that concerns about incumbent entrenchment are unfounded. In 1974, the city set expenditure limits on municipal elections. A 2-year interlude aside, these limits applied until 2001, when they were successfully challenged by municipal candidates. Homans v. Albuquerque, 217 F.Supp. 2d 1197, 1200 (NM 2002), aff'd, 366 F.3d 900 (CA10), cert. denied, 543 U.S 1002 (2004). In its findings of fact, the Federal District Court determined that "[n]ationwide, eighty-eight percent (88%) of incumbent Mayors successfully sought reelection in 1999. In contrast, since 1974, the City has had a zero percent (0%) success rate for Mayors seeking reelection." 217 F.Supp. 2d, at 1200 (citation omitted). The court further concluded that the "system of unlimited spending has deleterious effects on the competitiveness of elections because it gives incumbent candidates an electoral advantage." Ibid. While far from conclusive, this example cuts against the view that there is a slam-dunk correlation between expenditure limits and incumbent advantage. See also Brief for Center for Democracy and Election Management at American University as Amicus Curiae (concluding that Canada, the United Kingdom, New Zealand, and Malta--all of which have campaign expenditure limits--have more electoral competition than the United States, Jamaica, Ireland, and Australia--all of which lack such limits). Footnote 5See Art.I, §4 (providing that the "Times, Places and Manner of hold-ing Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"); see also §5 (providing that "Each House may determine the Rules of its Proceedings"). FOOTNOTESFootnote **In approving the public funding provisions of the subject campaign finance law, Subtitle H of the Internal Revenue Code, the Buckley Court appreciated that in enacting the provision Congress was legislating in part "to free candidates from the rigors of fundraising," 483 U.S. 203, 207 (1987); see also Buckley, supra, at 90, does not imply a conclusive rejection of it as to the separate issue of expenditure limits.

conservative

other

first_amendment

1971-146-01

United States Supreme Court FLOOD v. KUHN(1972) No. 71-32 Argued: March 20, 1972Decided: June 19, 1972 Petitioner, a professional baseball player "traded" to another club without his previous knowledge or consent, brought this antitrust suit after being refused the right to make his own contract with another major league team, which is not permitted under the reserve system. The District Court rendered judgment in favor of respondents, and the Court of Appeals affirmed. Held: The longstanding exemption of professional baseball from the antitrust laws, Federal Baseball Club v. National League, 259 U.S. 200 (1922); Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), is an established aberration, in the light of the Court's holding that other interstate professional sports are not similarly exempt, but one in which Congress has acquiesced, and that is entitled to the benefit of stare decisis. Removal of the resultant inconsistency at this late date is a matter for legislative, not judicial, resolution. Pp. 269-285. 443 F.2d 264, affirmed. BLACKMUN, J., delivered the opinion of the Court, in which STEWART and REHNQUIST, JJ., joined, and in all but part I of which BURGER, C. J., and WHITE, J., joined. BURGER, C. J., filed a concurring opinion, post, p. 285. DOUGLAS, J., post, p. 286, and MARSHALL, J., post, p. 288, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case. Arthur J. Goldberg argued the cause for petitioner. With him on the briefs was Jay H. Topkis. Paul A. Porter argued the cause for respondent Kuhn. Louis F. Hoynes, Jr., argued the cause for respondents Feeney, President of National League of Professional Baseball Clubs, et al. With them on the brief were Mark F. Hughes, Alexander H. Hadden, James P. Garner, Warren Daane, and Jerome I. Chapman. [407 U.S. 258, 259] MR. JUSTICE BLACKMUN delivered the opinion of the Court. For the third time in 50 years the Court is asked specifically to rule that professional baseball's reserve system is within the reach of the federal antitrust laws. 1 [407 U.S. 258, 260] Collateral issues of state law and of federal labor policy are also advanced. I THE GAME It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken's [407 U.S. 258, 261] Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball's beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure. The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born. The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve "clause"; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or "junior circuit," in 1901, rising from the minor Western Association; the first World [407 U.S. 258, 262] Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966. 2 Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, [407 U.S. 258, 263] Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. 3 The list seems endless. And one recalls the appropriate reference to the "World Serious," attributed to Ring Lardner, Sr.; Ernest L. Thayer's "Casey at the Bat"; 4 the ring of "Tinker to [407 U.S. 258, 264] Evers to Chance"; 5 and all the other happenings, habits, and superstitions about and around baseball that made it the "national pastime" or, depending upon the point of view, "the great American tragedy." 6 II The Petitioner The petitioner, Curtis Charles Flood, born in 1938, began his major league career in 1956 when he signed a contract with the Cincinnati Reds for a salary of $4,000 for the season. He had no attorney or agent to advise him on that occasion. He was traded to the St. Louis Cardinals before the 1958 season. Flood rose to fame as a center fielder with the Cardinals during the years 1958-1969. In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages. [407 U.S. 258, 265] Flood's St. Louis compensation for the years shown was: 1961 $13,500 (including a bonus for signing) 1962 $16,000 1963 $17,500 1964 $23,000 1965 $35,000 1966 $45,000 1967 $50,000 1968 $72,000 1969 $90,000 These figures do not include any so-called fringe benefits or World Series shares. But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied. Flood then instituted this antitrust suit 7 in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary [407 U.S. 258, 266] servitude contrary to the Thirteenth Amendment and 42 U.S.C. 1994, 18 U.S.C. 1581, and 29 U.S.C. 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages. Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000. 8 Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then. III The Present Litigation Judge Cooper, in a detailed opinion, first denied a preliminary injunction, 309 F. Supp. 793 (SDNY 1970), observing on the way: "Baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage. Major league professional baseball is avidly followed by millions of fans, looked upon with fervor and pride and provides a special source of inspiration and competitive team spirit especially for the young. "Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to [407 U.S. 258, 267] most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial and profit considerations. The game is on higher ground; it behooves every one to keep it there." 309 F. Supp., at 797. Flood's application for an early trial was granted. The court next deferred until trial its decision on the defendants' motions to dismiss the primary causes of action, but granted a defense motion for summary judgment on an additional cause of action. 312 F. Supp. 404 (SDNY 1970). Trial to the court took place in May and June 1970. An extensive record was developed. In an ensuing opinion, 316 F. Supp. 271 (SDNY 1970), Judge Cooper first noted that: "Plaintiff's witnesses in the main concede that some form of reserve on players is a necessary element of the organization of baseball as a league sport, but contend that the present all-embracing system is needlessly restrictive and offer various alternatives which in their view might loosen the bonds without sacrifice to the game. . . . . . . . . "Clearly the preponderance of credible proof does not favor elimination of the reserve clause. With the sole exception of plaintiff himself, it shows that even plaintiff's witnesses do not contend that it is wholly undesirable; in fact they regard substantial portions meritorious. . . ." 316 F. Supp., at 275-276. He then held that Federal Baseball Club v. National League, 259 U.S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), were controlling; that it was not necessary to reach the issue whether exemption from the antitrust laws would result because aspects of [407 U.S. 258, 268] baseball now are a subject of collective bargaining; that the plaintiff's state-law claims, those based on common law as well as on statute, were to be denied because baseball was not "a matter which admits of diversity of treatment," 316 F. Supp., at 280; that the involuntary servitude claim failed because of the absence of "the essential element of this cause of action, a showing of compulsory service," 316 F. Supp., at 281-282; and that judgment was to be entered for the defendants. Judge Cooper included a statement of personal conviction to the effect that "negotiations could produce an accommodation on the reserve system which would be eminently fair and equitable to all concerned" and that "the reserve clause can be fashioned so as to find acceptance by player and club." 316 F. Supp., at 282 and 284. On appeal, the Second Circuit felt "compelled to affirm." 443 F.2d 264, 265 (1971). It regarded the issue of state law as one of first impression, but concluded that the Commerce Clause precluded its application. Judge Moore added a concurring opinion in which he predicted, with respect to the suggested overruling of Federal Baseball and Toolson, that "there is no likelihood that such an event will occur." 9 443 F.2d, at 268, 272. [407 U.S. 258, 269] We granted certiorari in order to look once again at this troublesome and unusual situation. 404 U.S. 880 (1971). IV The Legal Background A. Federal Baseball Club v. National League, 259 U.S. 200 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U.S., at 201 -206. Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said: "The business is giving exhibitions of base ball, which are purely state affairs. . . . But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and [407 U.S. 258, 270] must arrange and pay for their doing so is not enough to change the character of the business. . . . [T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendants, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State. "If we are right the plaintiff's business is to be described in the same way and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the States." 259 U.S., at 208 -209. 10 [407 U.S. 258, 271] The Court thus chose not to be persuaded by opposing examples proffered by the plaintiff, among them (a) Judge Learned Hand's decision on a demurrer to a Sherman Act complaint with respect to vaudeville entertainers traveling a theater circuit covering several States, H. B. Marienelli, Ltd. v. United Booking Offices, 227 F. 165 (SDNY 1914); (b) the first Mr. Justice Harlan's opinion in International Textbook Co. v. Pigg, 217 U.S. 91 (1910), to the effect that correspondence courses pursued through the mail constituted commerce among the States; and (c) Mr. Justice Holmes' own opinion, for another unanimous Court, on demurrer in a Sherman Act case, relating to cattle shipment, the interstate movement of which was interrupted for the finding of purchasers at the stockyards, Swift & Co. v. United States, 196 U.S. 375 (1905). The only earlier case the parties were able to locate where the question was raised whether organized baseball was within the Sherman Act was American League Baseball Club v. Chase, 86 Misc. 441, 149 N. Y. S. 6 (1914). That court had answered the question in the negative. B. Federal Baseball was cited a year later, and without disfavor, in another opinion by Mr. Justice Holmes for a unanimous Court. The complaint charged antitrust violations with respect to vaudeville bookings. It was held, however, that the claim was not frivolous and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271 (1923). 11 It has also been cited, not unfavorably, with respect to the practice of law, United States v. South-Eastern [407 U.S. 258, 272] Underwriters Assn., 322 U.S. 533, 573 (1944) (Stone, C. J., dissenting); with respect to out-of-state contractors, United States v. Employing Plasterers Assn., 347 U.S. 186, 196 -197 (1954) (Minton, J., dissenting); and upon a general comparison reference, North American Co. v. SEC, 327 U.S. 686, 694 (1946). In the years that followed, baseball continued to be subject to intermittent antitrust attack. The courts, however, rejected these challenges on the authority of Federal Baseball. In some cases stress was laid, although unsuccessfully, on new factors such as the development of radio and television with their substantial additional revenues to baseball. 12 For the most part, however, the Holmes opinion was generally and necessarily accepted as controlling authority. 13 And in the 1952 Report of the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, H. R. Rep. No. 2002, 82d Cong., 2d Sess., 229, it was said, in conclusion: "On the other hand the overwhelming preponderance of the evidence established baseball's need for some sort of reserve clause. Baseball's history shows that chaotic conditions prevailed when there was no reserve clause. Experience points to no feasible substitute to protect the integrity of the game or to guarantee a comparatively even competitive [407 U.S. 258, 273] struggle. The evidence adduced at the hearings would clearly not justify the enactment of legislation flatly condemning the reserve clause." C. The Court granted certiorari, 345 U.S. 963 (1953), in the Toolson, Kowalski, and Corbett cases, cited in nn. 12 and 13, supra, and, by a short per curiam (Warren, C. J., and Black, Frankfurter, DOUGLAS, Jackson, Clark, and Minton, JJ.), affirmed the judgments of the respective courts of appeals in those three cases. Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953). Federal Baseball was cited as holding "that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws," 346 U.S., at 357 , and: "Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." Ibid. This quotation reveals four reasons for the Court's affirmance of Toolson and its companion cases: (a) Congressional awareness for three decades of the Court's ruling in Federal Baseball, coupled with congressional [407 U.S. 258, 274] inaction. (b) The fact that baseball was left alone to develop for that period upon the understanding that the reserve system was not subject to existing federal antitrust laws. (c) A reluctance to overrule Federal Baseball with consequent retroactive effect. (d) A professed desire that any needed remedy be provided by legislation rather than by court decree. The emphasis in Toolson was on the determination, attributed even to Federal Baseball, that Congress had no intention to include baseball within the reach of the federal antitrust laws. Two Justices (Burton and Reed, JJ.) dissented, stressing the factual aspects, revenue sources, and the absence of an express exemption of organized baseball from the Sherman Act. 346 U.S., at 357 . The 1952 congressional study was mentioned. Id., at 358, 359, 361. It is of interest to note that in Toolson the petitioner had argued flatly that Federal Baseball "is wrong and must be overruled," Brief for Petitioner, No. 18, O. T. 1953, p. 19, and that Thomas Reed Powell, a constitutional scholar of no small stature, urged, as counsel for an amicus, that "baseball is a unique enterprise," Brief for Boston American League Base Ball Co. as Amicus Curiae 2, and that "unbridled competition as applied to baseball would not be in the public interest." Id., at 14. D. United States v. Shubert, 348 U.S. 222 (1955), was a civil antitrust action against defendants engaged in the production of legitimate theatrical attractions throughout the United States and in operating theaters for the presentation of such attractions. The District Court had dismissed the complaint on the authority of Federal Baseball and Toolson. 120 F. Supp. 15 (SDNY 1953). This Court reversed. Mr. Chief Justice Warren noted the Court's broad conception of "trade or commerce" in the antitrust statutes and the types of enterprises already held to be within the reach of that phrase. [407 U.S. 258, 275] He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the performance of local exhibitions are exempt from the antitrust laws. 348 U.S., at 227 . He then went on to elucidate the holding in Toolson by meticulously spelling out the factors mentioned above: "In Federal Baseball, the Court, speaking through Mr. Justice Holmes, was dealing with the business of baseball and nothing else. . . . The travel, the Court concluded, was `a mere incident, not the essential thing.' . . . . . . . . "In Toolson, where the issue was the same as in Federal Baseball, the Court was confronted with a unique combination of circumstances. For over 30 years there had stood a decision of this Court specifically fixing the status of the baseball business under the antitrust laws and more particularly the validity of the so-called `reserve clause.' During this period, in reliance on the Federal Baseball precedent, the baseball business had grown and developed. . . . And Congress, although it had actively considered the ruling, had not seen fit to reject it by amendatory legislation. Against this background, the Court in Toolson was asked to overrule Federal Baseball on the ground that it was out of step with subsequent decisions reflecting present-day concepts of interstate commerce. The Court, in view of the circumstances of the case, declined to do so. But neither did the Court necessarily reaffirm all that was said in Federal Baseball. Instead, `[w]ithout re-examination of the underlying issues,' the Court adhered to Federal Baseball `so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' 346 [407 U.S. 258, 276] U.S., at 357. In short, Toolson was a narrow application of the rule of stare decisis. ". . . If the Toolson holding is to be expanded - or contracted - the appropriate remedy lies with Congress." 348 U.S., at 228 -230. E. United States v. International Boxing Club, 348 U.S. 236 (1955), was a companion to Shubert and was decided the same day. This was a civil antitrust action against defendants engaged in the business of promoting professional championship boxing contests. Here again the District Court had dismissed the complaint in reliance upon Federal Baseball and Toolson. The Chief Justice observed that "if it were not for Federal Baseball and Toolson, we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the Act." 348 U.S., at 240 -241. He pointed out that the defendants relied on the two baseball cases but also would have been content with a more restrictive interpretation of them than the Shubert defendants, for the boxing defendants argued that the cases immunized only businesses that involve exhibitions of an athletic nature. The Court accepted neither argument. It again noted, 348 U.S., at 242 , that "Toolson neither overruled Federal Baseball nor necessarily reaffirmed all that was said in Federal Baseball." It stated: "The controlling consideration in Federal Baseball and Hart was, instead, a very practical one - the degree of interstate activity involved in the particular business under review. It follows that stare decisis cannot help the defendants here; for, contrary to their argument, Federal Baseball did not hold that all businesses based on professional sports were outside the scope of the antitrust laws. The issue confronting us is, therefore, not whether a previously granted exemption should continue, [407 U.S. 258, 277] but whether an exemption should be granted in the first instance. And that issue is for Congress to resolve, not this Court." 348 U.S., at 243 . The Court noted the presence then in Congress of various bills forbidding the application of the antitrust laws to "organized professional sports enterprises"; the holding of extensive hearings on some of these; subcommittee opposition; a postponement recommendation as to baseball; and the fact that "Congress thus left intact the then-existing coverage of the antitrust laws." 348 U.S., at 243 -244. Mr. Justice Frankfurter, joined by Mr. Justice Minton, dissented. "It would baffle the subtlest ingenuity," he said, "to find a single differentiating factor between other sporting exhibitions . . . and baseball insofar as the conduct of the sport is relevant to the criteria or considerations by which the Sherman Law becomes applicable to a `trade or commerce.'" 348 U.S., at 248 . He went on: "The Court decided as it did in the Toolson case as an application of the doctrine of stare decisis. That doctrine is not, to be sure, an imprisonment of reason. But neither is it a whimsy. It can hardly be that this Court gave a preferred position to baseball because it is the great American sport. . . . If stare decisis be one aspect of law, as it is, to disregard it in identical situations is mere caprice. "Congress, on the other hand, may yield to sentiment and be capricious, subject only to due process. . . . "Between them, this case and Shubert illustrate that nice but rational distinctions are inevitable in adjudication. I agree with the Court's opinion in Shubert for precisely the reason that constrains me to dissent in this case." 348 U.S., at 249 -250. [407 U.S. 258, 278] Mr. Justice Minton also separately dissented on the ground that boxing is not trade or commerce. He added the comment that "Congress has not attempted" to control baseball and boxing. 348 U.S., at 251 , 253. The two dissenting Justices, thus, did not call for the overruling of Federal Baseball and Toolson; they merely felt that boxing should be under the same umbrella of freedom as was baseball and, as Mr. Justice Frankfurter said, 348 U.S., at 250 , they could not exempt baseball "to the exclusion of every other sport different not one legal jot or tittle from it." 14 F. The parade marched on. Radovich v. National Football League, 352 U.S. 445 (1957), was a civil Clayton Act case testing the application of the antitrust laws to professional football. The District Court dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not hesitate to "confess that the strength of the pull" of the baseball cases and of International Boxing "is about equal," but then observed that "[f]ootball is a team sport" and boxing an individual one. 231 F.2d 620, 622. This Court reversed with an opinion by Mr. Justice Clark. He said that the Court made its ruling in Toolson "because it was concluded that more harm would be done in overruling Federal Baseball than in upholding a ruling which at best was of dubious validity." 352 U.S., at 450 . He noted that Congress had not acted. He then said: "All this, combined with the flood of litigation that would follow its repudiation, the harassment that would ensue, and the retroactive effect of such a decision, led the Court to the practical result that [407 U.S. 258, 279] it should sustain the unequivocal line of authority reaching over many years. "[S]ince Toolson and Federal Baseball are still cited as controlling authority in antitrust actions involving other fields of business, we now specifically limit the rule there established to the facts there involved, i. e., the business of organized professional baseball. As long as the Congress continues to acquiesce we should adhere to - but not extend - the interpretation of the Act made in those cases. . . . "If this ruling is unrealistic, inconsistent, or illogical, it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts. But Federal Baseball held the business of baseball outside the scope of the Act. No other business claiming the coverage of those cases has such an adjudication. We, therefore, conclude that the orderly way to eliminate error or discrimination, if any there be, is by legislation and not by court decision. Congressional processes are more accommodative, affording the whole industry hearings and an opportunity to assist in the formulation of new legislation. The resulting product is therefore more likely to protect the industry and the public alike. The whole scope of congressional action would be known long in advance and effective dates for the legislation could be set in the future without the injustices of retroactivity and surprise which might follow court action." 352 U.S., at 450 -452 (footnote omitted). Mr. Justice Frankfurter dissented essentially for the reasons stated in his dissent in International Boxing, [407 U.S. 258, 280] 352 U.S., at 455 . Mr. Justice Harlan, joined by MR. JUSTICE BRENNAN, also dissented because he, too, was "unable to distinguish football from baseball." 352 U.S., at 456 . Here again the dissenting Justices did not call for the overruling of the baseball decisions. They merely could not distinguish the two sports and, out of respect for stare decisis, voted to affirm. G. Finally, in Haywood v. National Basketball Assn., 401 U.S. 1204 (1971), MR. JUSTICE DOUGLAS, in his capacity as Circuit Justice, reinstated a District Court's injunction pendente lite in favor of a professional basketball player and said, "Basketball . . . does not enjoy exemption from the antitrust laws." 401 U.S., at 1205 . 15 H. This series of decisions understandably spawned extensive commentary, 16 some of it mildly critical and [407 U.S. 258, 281] much of it not; nearly all of it looked to Congress for any remedy that might be deemed essential. I. Legislative proposals have been numerous and persistent. Since Toolson more than 50 bills have been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball. 17 A few of these passed one house or the other. Those that did would have expanded, not restricted, the reserve system's exemption to other professional league sports. And the Act of Sept. 30, 1961, Pub. L. 87-331, 75 Stat. 732, and the merger addition thereto effected by the Act of Nov. 8, 1966. Pub. L. 89-800, 6 (b), [407 U.S. 258, 282] 80 Stat. 1515, 15 U.S.C. 1291-1295, were also expansive rather than restrictive as to antitrust exemption. 18 V In view of all this, it seems appropriate now to say that: 1. Professional baseball is a business and it is engaged in interstate commerce. 2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball. 3. Even though others might regard this as "unrealistic, inconsistent, or illogical," see Radovich, 352 U.S., at 452 , the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs. 4. Other professional sports operating interstate - football, [407 U.S. 258, 283] boxing, basketball, and, presumably, hockey 19 and golf 20 - are not so exempt. 5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson. 6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241 -242 (1970). 7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation. 8. The Court noted in Radovich, 352 U.S., at 452 , that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century. This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, [407 U.S. 258, 284] has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively. Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency. The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national "uniformity [is required] in any regulation of baseball and its reserve system." 316 F. Supp., at 280. The Court of Appeals, in affirming, stated, "[A]s the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law." 443 F.2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holdings in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law, 21 [407 U.S. 258, 285] these statements adequately dispose of the state law claims. The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws. 22 We repeat for this case what was said in Toolson: "Without re-examination of the underlying issues, the [judgment] below [is] affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." 346 U.S., at 357 . And what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action. The judgment of the Court of Appeals is Affirmed. MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion. MR. JUSTICE POWELL took no part in the consideration or decision of this case. Footnotes [Footnote 1 The reserve system, publicly introduced into baseball contracts in 1887, see Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890), centers in the uniformity of player contracts; the confinement of the player to the club that has him under the contract; the assignability of the player's contract; and the ability of the club annually to renew the contract unilaterally, subject to a stated salary minimum. Thus A. Rule 3 of the Major League Rules provides in part: "(a) UNIFORM CONTRACT. To preserve morale and to produce the similarity of conditions necessary to keen competition, the contracts between all clubs and their players in the Major Leagues shall be in a single form which shall be prescribed by the Major League Executive Council. No club shall make a contract different from the uniform contract or a contract containing a non-reserve clause, except with the written approval of the Commissioner. . . . . . . . . "(g) TAMPERING. To preserve discipline and competition, and to prevent the enticement of players, coaches, managers and umpires, there shall be no negotiations or dealings respecting employment, either present or prospective, between any player, coach or manager and any club other than the club with which he is under contract or acceptance of terms, or by which he is reserved, or which has the player on its Negotiation List, or between any umpire and any league other than the league with which he is under contract or acceptance of terms, unless the club or league with which he is connected shall have, in writing, expressly authorized such negotiations or dealings prior to their commencement." B. Rule 9 of the Major League Rules provides in part: "(a) NOTICE. A club may assign to another club an existing contract with a player. The player, upon receipt of written notice of such assignment, is by his contract bound to serve the assignee. . . . . . "After the date of such assignment all rights and obligations of the [407 U.S. 258, 260] assignor clubs thereunder shall become the rights and obligations of the assignee club . . . ." C. Rules 3 and 9 of the Professional Baseball Rules contain provisions parallel to those just quoted. D. The Uniform Player's Contract provides in part: "4. (a). . . The Player agrees that, in addition to other remedies, the Club shall be entitled to injunctive and other equitable relief to prevent a breach of this contract by the Player, including, among others, the right to enjoin the Player from playing baseball for any other person or organization during the term of this contract." "5. (a). The Player agrees that, while under contract, and prior to expiration of the Club's right to renew this contract, he will not play baseball otherwise than for the Club, except that the Player may participate in post-season games under the conditions prescribed in the Major League Rules. . . ." "6. (a) The Player agrees that this contract may be assigned by the Club (and reassigned by any assignee Club) to any other Club in accordance with the Major League Rules and the Professional Baseball Rules." "10. (a) On or before January 15 (or if a Sunday, then the next preceding business day) of the year next following the last playing season covered by this contract, the Club may tender to the Player a contract for the term of that year by mailing the same to the Player at his address following his signature hereto, or if none be given, then at his last address of record with the Club. If prior to the March 1 next succeeding said January 15, the Player and the Club have not agreed upon the terms of such contract, then on or before 10 days after said March 1, the Club shall have the right by written notice to the Player at said address to renew this contract for the period of one year on the same terms, except that the amount payable to the Player shall be such as the club shall fix in said notice; provided, however, that said amount, if fixed by [407 U.S. 258, 261] a Major League Club, shall be an amount payable at a rate not less than 80% of the rate stipulated for the preceding year. "(b) The Club's right to renew this contract, as provided in sub-paragraph (a) of this paragraph 10, and the promise of the Player not to play otherwise than with the Club have been taken into consideration in determining the amount payable under paragraph 2 hereof." [Footnote 2 See generally The Baseball Encyclopedia (1969); L. Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour, Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966, 1970). [Footnote 3 These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated. [Footnote 4 Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise: "I knew a cove who'd never heard of Washington and Lee, Of Caesar and Napoleon from the ancient jamboree, But, bli'me, there are queerer things than anything like that, For here's a cove who never heard of `Casey at the Bat'! . . . . . "Ten million never heard of Keats, or Shelley, Burns or Poe; But they know `the air was shattered by the force of Casey's blow'; They never heard of Shakespeare, nor of Dickens, like as not, But they know the somber drama from old Mudville's haunted lot. "He never heard of Casey! Am I dreaming? Is it true? Is fame but windblown ashes when the summer day is through? Does greatness fade so quickly and is grandeur doomed to die That bloomed in early morning, ere the dusk rides down the sky?" "He Never Heard of Casey" Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23. [Footnote 5 "These are the saddest of possible words, `Tinker to Evers to chance.' Trio of bear cubs, and fleeter than birds, `Tinker to Evers to Chance.' Ruthlessly pricking our gonfalon bubble, Making a Giant hit into a double - Words that are weighty with nothing but trouble: `Tinker to Evers to Chance.'" Franklin Pierce Adams, Baseball's Sad Lexicon. [Footnote 6 George Bernard Shaw, The Sporting News, May 27, 1943, p. 15, col. 4. [Footnote 7 Concededly supported by the Major League Baseball Players Association, the players' collective-bargaining representative. Tr. of Oral Arg. 12. [Footnote 8 The parties agreed that Flood's participating in baseball in 1971 would be without prejudice to his case. [Footnote 9 "And properly so. Baseball's welfare and future should not be for politically insulated interpreters of technical antitrust statutes but rather should be for the voters through their elected representatives. If baseball is to be damaged by statutory regulation, let the congressman face his constituents the next November and also face the consequences of his baseball voting record." 443 F.2d, at 272. Cf. Judge Friendly's comments in Salerno v. American League, 429 F.2d 1003, 1005 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001 (1971): "We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's [407 U.S. 258, 269] own adjectives, the distinction between baseball and other professional sports is `unrealistic,' `inconsistent' and `illogical.'. . . While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch." [Footnote 10 "What really saved baseball, legally at least, for the next half century was the protective canopy spread over it by the United States Supreme Court's decision in the Baltimore Federal League anti-trust suit against Organized Baseball in 1922. In it Justice Holmes, speaking for a unanimous court, ruled that the business of giving baseball exhibitions for profit was not `trade or commerce in the commonly-accepted use of those words' because `personal effort, not related to production, is not a subject of commerce'; nor was it interstate, because the movement of ball clubs across state lines was merely `incidental' to the business. It should be noted that, contrary to what many believe, Holmes did call baseball a business; time and again those who have not troubled to read the text of the decision have claimed incorrectly that the court said baseball was a sport and not a business." 2 H. Seymour, Baseball 420 (1971). [Footnote 11 On remand of the Hart case the trial court dismissed the complaint at the close of the evidence. The Second Circuit affirmed on the ground that the plaintiff's evidence failed to establish that the interstate transportation was more than incidental. 12 F.2d 341 (1926). This Court denied certiorari, 273 U.S. 703 (1926). [Footnote 12 Toolson v. New York Yankees, Inc., 101 F. Supp. 93 (SD Cal. 1951), aff'd, 200 F.2d 198 (CA9 1952); Kowalski v. Chandler, 202 F.2d 413 (CA6 1953). See Salerno v. American League, 429 F.2d 1003 (CA2 1970), cert, denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001 (1971). But cf. Gardella v. Chandler, 172 F.2d 402 (CA2 1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F.2d 917 (CA2 1949). [Footnote 13 Corbett v. Chandler, 202 F.2d 428 (Ca6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F.2d 680 (CA9 1960); Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F. Supp. 705 (WD Wash. 1946). See State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U.S. 990 (1966). [Footnote 14 The case's final chapter is International Boxing Club v. United States, 358 U.S. 242 (1959). [Footnote 15 See also Denver Rockets v. All-Pro Management, Inc., 325 F. Supp. 1049, 1060 (CD Cal. 1971); Washington Professional Basketball Corp. v. National Basketball Assn., 147 F. Supp. 154 (SDNY 1956). [Footnote 16 Neville, Baseball and the Antitrust Laws, 16 Fordham L. Rev. 208 (1947); Eckler, Baseball - Sport or Commerce?, 17 U. Chi. L. Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Baseball Meets the Antitrust Laws, 62 Yale L. J. 576 (1953); P. Gregory, The Baseball Player, An Economic Study, c. 19 (1956); Note, The Super Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv. L. Rev. 418 (1967); The Supreme Court, 1953 Term, 68 Harv. L. Rev. 105, 136-138 (1954); The Supreme Court, 1956 Term, 71 Harv. L. Rev. 94, 170-173 (1957); Note, 32 Va. L. Rev. 1164 (1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col. L. Rev. 242 (1953); Note, 22 U. Kan. City L. Rev. 173 (1954); Note, 25 Miss. L. J. 270 (1954); Note, 29 N. Y. U. L. Rev. 213 (1954); Note, 105 U. Pa. L. Rev. 110 (1956); Note, 32 Texas L. Rev. 890 (1954); Note, 35 B. U. L. Rev. 447 (1955); Note, 57 Col. L. Rev. 725 (1957); Note, 23 Geo. Wash. L. Rev. 606 (1955); Note, 1 How. L. J. 281 (1955); Note, 26 Miss. L. J. 271 (1955); Note, 9 Sw. L. J. 369 (1955); Note, 29 Temple L. Q. 103 (1955); Note, 29 Tul. L. Rev. 793 (1955); Note, 62 Dick. [407 U.S. 258, 281] L. Rev. 96 (1957); Note, 11 Sw. L. J. 516 (1957); Note, 36 N.C. L. Rev. 315 (1958); Note, 35 Fordham L. Rev. 350 (1966); Note, 8 B. C. Ind. & Com. L. Rev. 341 (1967); Note, 13 Wayne L. Rev. 417 (1967); Note, 2 Rutgers-Camden L. J. 302 (1970); Note, 8 San Diego L. Rev. 92 (1970); Note, 12 B. C. Ind. & Com. L. Rev. 737 (1971); Note, 12 Wm. & Mary L. Rev. 859 (1971). [Footnote 17 Hearings on H. R. 5307 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess. (1957); Hearings on H. R. 10378 and S. 4070 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H. R. 2370 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not printed); Hearings on S. 616 and S. 886 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964); S. Rep. No. 1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965); S. Rep. No. 462, 89th Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st Sess., and bearing on the subject are S. 2599, S. 2616, H. R. 2305, H. R. 11033, and H. R. 10825. [Footnote 18 Title 15 U.S.C. 1294 reads: "Nothing contained in this chapter shall be deemed to change, determine, or otherwise affect the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in the organized professional team sports of football, baseball, basketball, or hockey, except the agreements to which section 1291 of this title shall apply." (Emphasis supplied.) [Footnote 19 Peto v. Madison Square Garden Corp., 1958 Trade Cases, § 69,106 (SDNY 1958). [Footnote 20 Deesen v. Professional Golfers' Assn., 358 F.2d 165 (CA9), cert. denied, 385 U.S. 846 (1966). [Footnote 21 See Brief for Respondent in Federal Baseball, No. 204, O. T. 1921, p. 67, and in Toolson, No. 18, O. T. 1953, p. 30. See also State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U.S. 990 (1966). [Footnote 22 See Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971), suggesting present-day irrelevancy of the antitrust issue. MR. CHIEF JUSTICE BURGER, concurring. I concur in all but Part I of the Court's opinion but, like MR. JUSTICE DOUGLAS, I have grave reservations [407 U.S. 258, 286] as to the correctness of Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); as he notes in his dissent, he joined that holding but has "lived to regret it." The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with MR. JUSTICE DOUGLAS that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting. This Court's decision in Federal Baseball Club v. National League, 259 U.S. 200 , made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view 1 of a rather dismal business account over the last 50 years would keep that derelict in midstream. In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U.S. 1 , Hammer v. Dagenhart, 247 U.S. 251 , and Paul v. Virginia, 8 Wall. 168, the whole concept of commerce has changed. Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 ; United States v. Darby, 312 U.S. 100 ; Wickard v. Filburn, 317 U.S. 111 ; United States v. South-Eastern Underwriters Assn., 322 U.S. 533 , the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. [407 U.S. 258, 287] An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce. Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs. The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade. 2 Gardella v. Chandler, 172 F.2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers). If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation. 3 H. R. Rep. No. 2002, 82d Cong., 2d Sess. [407 U.S. 258, 288] (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U.S.C. 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly. There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate" 4 we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U.S. 445, 452 . The unbroken silence of Congress should not prevent us from correcting our own mistakes. [Footnote 1 While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U.S. 356 , I have lived to regret it; and I would now correct what I believe to be its fundamental error. [Footnote 2 Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 ; United States v. Shubert, 348 U.S. 222 ; or even in another sport, Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers); Radovich v. National Football League, 352 U.S. 445 ; United States v. International Boxing Club, 348 U.S. 236 ; we would have no difficulty in sustaining petitioner's claim. [Footnote 3 The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U.S. 106, 119 -121, where we said: "Nor does want of specific Congressional repudiations . . . serve as an implied instruction by Congress to us not to reconsider, in the light of new experience . . . those decisions . . . . It would require very persuasive circumstances enveloping Congressional silence to [407 U.S. 258, 288] debar this Court from re-examining its own doctrines. . . . Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of . . . Congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle." And see United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 556 -561. [Footnote 4 This case gives us for the first time a full record showing the reserve clause in actual operation. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. Petitioner was a major league baseball player from 1956, when he signed a contract with the Cincinnati Reds, until 1969, when his 12-year career with the St. Louis Cardinals, which had obtained him from the Reds, ended and he was traded to the Philadelphia Phillies. He had no notice that the Cardinals were contemplating a trade, no opportunity to indicate the teams with which he would prefer playing, and no desire to go to Philadelphia. After receiving formal notification of the trade, petitioner wrote to the Commissioner of Baseball protesting that he was not [407 U.S. 258, 289] "a piece of property to be bought and sold irrespective of my wishes," 1 and urging that he had the right to consider offers from other teams than the Phillies. He requested that the Commissioner inform all of the major league teams that he was available for the 1970 season. His request was denied, and petitioner was informed that he had no choice but to play for Philadelphia or not to play at all. To non-athletes it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services. But, athletes know that it was not servitude that bound petitioner to the club owners; it was the reserve system. The essence of that system is that a player is bound to the club with which he first signs a contract for the rest of his playing days. 2 He cannot escape from the club except by retiring, and he cannot prevent the club from assigning his contract to any other club. Petitioner brought this action in the United States District Court for the Southern District of New York. He alleged, among other things, that the reserve system was an unreasonable restraint of trade in violation of [407 U.S. 258, 290] federal antitrust laws. 3 The District Court thought itself bound by prior decisions of this Court and found for the respondents after a full trial. 309 F. Supp. 793 (1970). The United States Court of Appeals for the Second Circuit affirmed. 443 F.2d 264 (1971). We granted certiorari on October 19, 1971, 404 U.S. 880 , in order to take a further look at the precedents relied upon by the lower courts. This is a difficult case because we are torn between the principle of stare decisis and the knowledge that the decisions in Federal Baseball Club v. National League, 259 U.S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), are totally at odds with more recent and better reasoned cases. In Federal Baseball Club, a team in the Federal League brought an antitrust action against the National and American Leagues and others. In his opinion for a unanimous Court, Mr. Justice Holmes wrote that the business being considered was "giving exhibitions of base ball, which are purely state affairs." 259 U.S., at 208 . Hence, the Court held that baseball was not within the purview of the antitrust laws. Thirty-one years later, the Court reaffirmed this decision, without reexamining it, in Toolson, a one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The Court said: "The business has . . . been left for thirty years to develop, on the understanding that it was not [407 U.S. 258, 291] subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation." Id., at 357. Much more time has passed since Toolson and Congress has not acted. We must now decide whether to adhere to the reasoning of Toolson - i. e., to refuse to re-examine the underlying basis of Federal Baseball Club - or to proceed with a re-examination and let the chips fall where they may. In his answer to petitioner's complaint, the Commissioner of Baseball "admits that under present concepts of interstate commerce defendants are engaged therein." App. 40. There can be no doubt that the admission is warranted by today's reality. Since baseball is interstate commerce, if we re-examine baseball's antitrust exemption, the Court's decisions in United States v. Shubert, 348 U.S. 222 (1955), United States v. International Boxing Club, 348 U.S. 236 (1955), and Radovich v. National Football League, 352 U.S. 445 (1957), require that we bring baseball within the coverage of the antitrust laws. See also, Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers). We have only recently had occasion to comment that: "Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. . . . Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy [407 U.S. 258, 292] because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy." United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972). The importance of the antitrust laws to every citizen must not be minimized. They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers. Baseball players cannot be denied the benefits of competition merely because club owners view other economic interests as being more important, unless Congress says so. Has Congress acquiesced in our decisions in Federal Baseball Club and Toolson? I think not. Had the Court been consistent and treated all sports in the same way baseball was treated, Congress might have become concerned enough to take action. But, the Court was inconsistent, and baseball was isolated and distinguished from all other sports. In Toolson the Court refused to act because Congress had been silent. But the Court may have read too much into this legislative inaction. Americans love baseball as they love all sports. Perhaps we become so enamored of athletics that we assume that they are foremost in the minds of legislators as well as fans. We must not forget, however, that there are only some 600 major league baseball players. Whatever muscle they might have been able to muster by combining forces with other athletes has been greatly impaired by the manner in which this Court has isolated them. It is this Court that has made them impotent, and this Court should correct its error. We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights, like the right to compete freely and effectively to the best of one's ability as guaranteed by the [407 U.S. 258, 293] antitrust laws, we must admit our error and correct it. We have done so before and we should do so again here. See, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241 (1970). 4 To the extent that there is concern over any reliance interests that club owners may assert, they can be satisfied by making our decision prospective only. Baseball should be covered by the antitrust laws beginning with this case and henceforth, unless Congress decides otherwise. 5 Accordingly, I would overrule Federal Baseball Club and Toolson and reverse the decision of the Court of Appeals. 6 This does not mean that petitioner would necessarily prevail, however. Lurking in the background is a hurdle of recent vintage that petitioner still must overcome. [407 U.S. 258, 294] In 1966, the Major League Players Association was formed. It is the collective-bargaining representative for all major league baseball players. Respondents argue that the reserve system is now part and parcel of the collective-bargaining agreement and that because it is a mandatory subject of bargaining, the federal labor statutes are applicable, not the federal antitrust laws. 7 The lower courts did not rule on this argument, having decided the case solely on the basis of the antitrust exemption. This Court has faced the interrelationship between the antitrust laws and the labor laws before. The decisions make several things clear. First, "benefits to organized labor cannot be utilized as a cat's-paw to pull employer's chestnuts out of the antitrust fires." United States v. Women's Sportswear Manufacturers Assn., 336 U.S. 460, 464 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797 (1945). Second, the very nature of a collective-bargaining agreement mandates that the parties be able to "restrain" trade to a greater degree than management could do unilaterally. United States v. Hutcheson, 312 U.S. 219 (1941); United Mine Workers v. Pennington, 381 U.S. 657 (1965); Amalgamated Meat Cutters v. Jewel Tea, 381 U.S. 676 (1965); cf., Teamsters Union v. Oliver, 358 U.S. 283 (1959). Finally, it is clear that some cases can be resolved only by examining the purposes and the competing interests of the labor and antitrust statutes and by striking a balance. It is apparent that none of the prior cases is precisely in point. They involve union-management agreements that work to the detriment of management's competitors. In this case, petitioner urges that the reserve system works to the detriment of labor. [407 U.S. 258, 295] While there was evidence at trial concerning the collective-bargaining relationship of the parties, the issues surrounding that relationship have not been fully explored. As one commentary has suggested, this case "has been litigated with the implications for the institution of collective bargaining only dimly perceived. The labor law issues have been in the corners of the case - the courts below, for example, did not reach them - moving in and out of the shadows like an uninvited guest at a party whom one can't decide either to embrace or expel." 8 It is true that in Radovich v. National Football League, supra, the Court rejected a claim that federal labor statutes governed the relationship between a professional athlete and the professional sport. But, an examination of the briefs and record in that case indicates that the issue was not squarely faced. The issue is once again before this Court without being clearly focused. It should, therefore, be the subject of further inquiry in the District Court. There is a surface appeal to respondents' argument that petitioner's sole remedy lies in filing a claim with the National Labor Relations Board, but this argument is premised on the notion that management and labor have agreed to accept the reserve clause. This notion is contradicted, in part, by the record in this case. Petitioner suggests that the reserve system was thrust upon the players by the owners and that the recently formed players' union has not had time to modify or eradicate it. If this is true, the question arises as to whether there would then be any exemption from the antitrust laws in this case. Petitioner also suggests that there are limits [407 U.S. 258, 296] to the antitrust violations to which labor and management can agree. These limits should also be explored. In light of these consideration, I would remand this case to the District Court for consideration of whether petitioner can state a claim under the antitrust laws despite the collective-bargaining agreement, and, if so, for a determination of whether there has been an antitrust violation in this case. [Footnote 1 Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App. 37. [Footnote 2 As MR. JUSTICE BLACKMUN points out, the reserve system is not novel. It has been employed since 1887. See Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890). The club owners assert that it is necessary to preserve effective competition and to retain fan interest. The players do not agree and argue that the reserve system is overly restrictive. Before this lawsuit was instituted, the players refused to agree that the reserve system should be a part of the collective-bargaining contract. Instead, the owners and players agreed that the reserve system would temporarily remain in effect while they jointly investigated possible changes. Their activity along these lines has halted pending the outcome of this suit. [Footnote 3 Petitioner also alleged a violation of state antitrust laws, state civil rights laws, and of the common law, and claimed that he was forced into peonage and involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. Because I believe that federal antitrust laws govern baseball, I find that state law has been pre-empted in this area. Like the lower courts, I do not believe that there has been a violation of the Thirteenth Amendment. [Footnote 4 In the past this Court has not hesitated to change its view as to what constitutes interstate commerce. Compare United States v. Knight Co., 156 U.S. 1 (1895), with Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (1948), and United States v. Darby, 312 U.S. 100 (1941). "The jurist concerned with `public confidence in, and acceptance of the judicial system' might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself." Szanton, Stare Decisis; A Dissenting View, 10 Hastings L. J. 394, 397 (1959). [Footnote 5 We said recently that "[i]n rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute . . . ." United States v. Estate of Donnelly, 397 U.S. 286, 295 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U.S. 13, 25 (1964). [Footnote 6 The lower courts did not reach the question of whether, assuming the antitrust laws apply, they have been violated. This should be considered on remand. [Footnote 7 Cf. United States v. Hutcheson, 312 U.S. 219 (1941). [Footnote 8 Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1, 22 (1971). [407 U.S. 258, 297]

conservative

other

economic_activity

1956-089-01

United States Supreme Court RABANG v. BOYD(1957) No. 403 Argued: May 1, 1957Decided: May 27, 1957 Petitioner, born in 1910 in the Philippine Islands, has resided in the continental United States since 1930 when he was admitted for permanent residence. He was convicted in February 1951 of violating the federal narcotics laws. After administrative proceedings, he was ordered deported under the Act of February 18, 1931, as amended, which provides for the deportation of "any alien" convicted of violating a federal narcotics law. Petitioner's application for habeas corpus was denied by the Federal District Court and the Court of Appeals affirmed. Held: Petitioner was deportable under the 1931 Act, and the judgment is affirmed. Pp. 428-433. (a) Under 14 of the Philippine Independence Act of 1934, persons born in the Philippine Islands, and who thereby were nationals of the United States, became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date. Pp. 429-431. (b) "Entry" from a foreign country was not a condition of deportability in the 1931 Act. Barber v. Gonzales, 347 U.S. 637 , distinguished. P. 431. (c) In the provision of the 1931 Act that deportation shall be accomplished "in manner provided in sections 19 and 20" of the Immigration Act of 1917, the reference to the "manner provided" in those sections draws into the 1931 Act not the requirement of "entry," but only the procedural steps for securing deportation set forth in those sections. Pp. 431-432. (d) The requirement of "entry" cannot be said to be implicit in the 1931 Act on the ground that the power to deport depends upon the power to exclude, and the power to exclude did not extend to Filipinos. Congress not only had, but exercised, the power to exclude Filipinos in 8 (a) (1) of the Independence Act. Pp. 432-433. 234 F.2d 904, affirmed. [353 U.S. 427, 428] John Caughlan argued the cause and filed a brief for petitioner. J. F. Bishop argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. MR. JUSTICE BRENNAN delivered the opinion of the Court. The petitioner, born in 1910 in the Philippine Islands, has lived in the continental United States since 1930, when he was admitted for permanent residence. In February 1951, he was convicted upon a plea of guilty of violating the federal narcotics laws. He was taken into custody in March 1951, and, after administrative proceedings, was ordered deported under the Act of February 18, 1931, as amended, which provided for the deportation of "any alien" convicted of violating a federal narcotics law. 1 Petitioner applied to the District Court for the Western District of Washington for a writ of habeas corpus and declaratory relief from the order of the Immigration and Naturalization Service deporting him to the Philippine [353 U.S. 427, 429] Islands. The District Court denied the petitioner's application, and the Court of Appeals for the Ninth Circuit affirmed. 2 We granted certiorari. 3 The sole issue for decision is whether the petitioner is deportable as an alien within the meaning of the 1931 Act. The parties agree that the petitioner was a national of the United States at birth and when he entered the continental United States for permanent residence. Under the 1898 Treaty of Paris, Spain ceded the Philippine Islands to the United States. 4 Article IX of the Treaty provided that ". . . [t]he civil rights and political status of the native inhabitants . . . shall be determined by the Congress." 5 Pursuant to that Article, the Congress declared, inter alia, in the Act of July 1, 1902, that Filipinos born in the Islands after 1899 were to ". . . be citizens of the Philippine Islands and as such entitled to the protection of the United States . . . ." 6 The Filipinos, as nationals, owed an obligation of permanent allegiance to this country. 7 Upon the proclamation of Philippine independence on July 4, 1946, 8 14 of the Philippine Independence Act of 1934 became operative. Section 14 provided: "Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the [353 U.S. 427, 430] immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries." 48 Stat. 464, 48 U.S.C. (1946 ed.) 1244. The Court of Appeals held that the petitioner lost his status as a national when the United States relinquished its sovereignty over the Islands on July 4, 1946, and that this occurred regardless of his residence in the continental United States on that date. 9 The petitioner argues that his status as a national, acquired at birth under the Treaty and the 1902 statute, bears such close relationship to the constitutionally secured birthright of citizenship acquired by the American-born, that its divestiture should rest only upon the most explicit expression of congressional intention. In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our long-standing national policy to grant independence to the Philippine people. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674 -678, 692. Section 14 of the Independence Act in clear language applies "to persons who were born in the Philippine Islands." This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States, [353 U.S. 427, 431] became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date. The petitioner contends that, because he was admitted for permanent residence at the time the Islands were a territory of the United States, he did not enter from a foreign country and therefore cannot be an alien within the purview of the 1931 Act. He relies on Barber v. Gonzales, 347 U.S. 637 , where this Court held that a Filipino admitted for permanent residence in 1930 was not deportable under 19 (a) of the Immigration Act of 1917 as an alien sentenced for certain crimes "committed . . . after entry." (Emphasis added.) The word "entry" was held to be significant of a congressional purpose to limit deportation under 19 (a) to aliens arriving "from some foreign port or place," a description which did not fit a territory belonging to the United States. But the 1931 Act differs from the 1917 Act because it is silent as to whether "entry" from a foreign country is a condition of deportability. By its terms, the 1931 Act applies to ". . . any alien . . . who, after . . . [February 18, 1931], shall be convicted . . ." of a federal narcotics offense. It follows that the holding in Gonzales is not applicable. The petitioner argues that the requirement of "entry," as construed in Gonzales, was incorporated into the 1931 Act by the provision that deportation shall be accomplished "in manner provided in sections 19 and 20" of the Immigration Act of 1917. 10 We hold that the reference [353 U.S. 427, 432] to the "manner provided" in those sections draws into the 1931 Act only the procedural steps for securing deportation set forth in those sections. Bugajewitz v. Adams, 228 U.S. 585 . The Congress adopted these procedures by reference instead of spelling them out in the 1931 Act. 11 The petitioner urges finally that the requirement of "entry" is implicit in the 1931 Act. Citing Fong Yue Ting v. United States, 149 U.S. 698 , he argues that the bounds of the power to deport aliens are circumscribed by the bounds of the power to exclude them, and that the power to exclude extends only to "foreigners" and does not embrace Filipinos admitted from the Islands when they were a territory of the United States. It is true that Filipinos were not excludable from the country under any general statute relating to the exclusion of "aliens." See Gonzales v. Williams, 192 U.S. 1, 12 -13; Toyota v. United States, 268 U.S. 402, 411 . But the fallacy in the petitioner's argument is the erroneous assumption that Congress was without power to legislate the exclusion of Filipinos in the same manner as "foreigners." This Court has held that ". . . the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be . . . ." Downes v. Bidwell, 182 U.S. 244, 279 . 12 Congress not only had, but exercised, [353 U.S. 427, 433] the power to exclude Filipinos in the provision of 8 (a) (1) of the Independence Act, which, for the period from 1934 to 1946, provided: "For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty. . . ." 48 Stat. 462, 48 U.S.C. (1934 ed.) 1238. The 1931 Act plainly covers the situation of the petitioner, who was an alien, and who was convicted of a federal narcotics offense. Cf. United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 . We therefore conclude that the petitioner was deportable as an alien under that Act. The judgment is Affirmed. Footnotes [Footnote 1 The Act of February 18, 1931, as amended, provided: ". . . [A]ny alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this Act) who, after . . . [February 18, 1931], shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt, derivative, or preparation of opium or coca leaves, shall be taken into custody and deported in manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled `An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States.'" 46 Stat. 1171, as amended, 54 Stat. 673, 8 U.S.C. (1946 ed.) 156a. [Footnote 2 234 F.2d 904. [Footnote 3 352 U.S. 906 . [Footnote 4 30 Stat. 1754. [Footnote 5 Id., at 1759. [Footnote 6 32 Stat. 691, 692; compare 39 Stat. 545, 546. [Footnote 7 Compare 101 of the Nationality Act of 1940, which defines the term "national" as follows: "(a) The term `national' means a person owing permanent allegiance to a state. "(b) The term `national of the United States' means . . . (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. It does not include an alien." 54 Stat. 1137, 8 U.S.C. (1946 ed.) 501. [Footnote 8 Presidential Proclamation No. 2695, 60 Stat. 1352, 11 Fed. Reg. 7517; Presidential Proclamation No. 2696, 60 Stat. 1353, 11 Fed. Reg. 7517. [Footnote 9 The Court of Appeals for the Ninth Circuit has consistently followed this principle. E. g., Resurreccion-Talavera v. Barber, 231 F.2d 524; Gonzales v. Barber, 207 F.2d 398, aff'd on other grounds, 347 U.S. 637 ; Mangaoang v. Boyd, 205 F.2d 553; Cabebe v. Acheson, 183 F.2d 795; cf. Banez v. Boyd, 236 F.2d 934. [Footnote 10 The "manner provided" in 19 of the Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. (1946 ed.) 155, was "upon the warrant of the Attorney General." Section 20, 39 Stat. 890, as amended, 8 U.S.C. (1946 ed., Supp. IV) 156, related to ports to which aliens are to be deported, costs of deportation and other details. The Attorney General is required by that section to deport "to the country specified by the alien, if it is willing to accept him into its territory." In the administrative proceedings the petitioner specified the Philippine Islands. [Footnote 11 It is not contended that the procedures specified in 19 and 20 were not followed in this case. [Footnote 12 See Magoon, Reports (1902), 120: "The inhabitants of the islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess the right of free entry into the United States. That right is appurtenant to citizenship. The rights of immigration into the United States by the inhabitants of said islands are no more than those of aliens of the same race coming from foreign lands." Illustrative of the scope of the congressional power is the treatment afforded Puerto Ricans who were first nationals, 31 Stat. 77, 79, and [353 U.S. 427, 433] who later became citizens, 39 Stat. 951, 953. See also Downes v. Bidwell, 182 U.S. 244, 280 , as to the status of the inhabitants of other territories acquired by the United States. MR. JUSTICE DOUGLAS, dissenting. The Act of February 18, 1931, 8 U.S.C. (1946 ed.) 156a, provided for the deportation of "any alien" convicted of violating a narcotic law after the date of the Act. Petitioner is a citizen of the Philippines and is therefore an alien by virtue of the Philippine Independence Act, 48 Stat. 456, c. 84, 8; and he was convicted of narcotics violation in 1951, which was after his status had been changed from a national to an alien. If the 1931 Act is to be read literally, the deportation of this Filipino is warranted. [353 U.S. 427, 434] But to read the Act literally is, I think, to miss its real import. First. In 1931 the only aliens here were those who had made an "entry" into this country. The condition of "entry" seems, therefore, necessarily implicit in the 1931 Act. Without that condition the Act would have had no application whatsoever at the time of its passage, for at that time every "alien" was a national of another country who had "entered" here. While the Philippine Independence Act later made Filipinos "aliens," that class of "aliens" who were resident here at the time never made an "entry" into this country. As Barber v. Gonzales, 347 U.S. 637 , holds, they were nationals to whom the concept of "entry" was inapplicable. Second. The 1931 Act provides that the offending alien shall be deported "in [the] manner" provided in 19 and 20 of the 1917 Act, 8 U.S.C. (1946 ed.) 155, 156. The words "in [the] manner" are said to refer to the means for securing deportation which, by 19 (a) of the 1917 Act, are described as "upon the warrant of the Attorney General." Bugajewitz v. Adams, 228 U.S. 585, 591 , construed the language of an earlier deportation Act in that way. It held that "in the manner provided" in that Act meant "the means for securing deportation." Yet it is difficult for me to say that by that ruling "in the manner" became words of art in legislative drafting. The Bugajewitz case involved a statute with a very special legislative history. The words "in the manner provided" had been substituted for "as provided." So it was apparent that Congress by the amendment had narrowed the meaning. There is no such special legislative history here. The words "in the manner" seem to me to be synonymous in this setting with "as provided" or "under the conditions of." And the condition of the 1917 Act most relevant here is a crime committed "after entry." [353 U.S. 427, 435] No matter how the case is viewed, the 1931 Act is applicable only to aliens who had made an "entry" in this country. This Filipino came to the United States in 1930 and he has never left here. If the spirit of the 1931 Act is to be observed, he should not be lumped with all other "aliens" who made an "entry." The Filipino alien, who came here while he was a national, stands in a class by himself and should remain there, until and unless Congress extends these harsh deportation measures to his class. [353 U.S. 427, 436]

conservative

public_entity

civil_rights

1975-084-02

United States Supreme Court MOE v. SALISH & KOOTENAI TRIBES(1976) No. 74-1656 Argued: January 20, 1976Decided: April 27, 1976 [Footnote * Together with No. 75-50, Confederated Salish and Kootenai Tribes of the Flathead Reservation et al. v. Moe, Sheriff, et al., also on appeal from the same court. An Indian tribe and some of its members residing on the tribal reservation in Montana brought actions challenging Montana's cigarette sales taxes and personal property taxes (in particular property taxes on motor vehicles) as applied to reservation Indians, and also the State's vendor licensing statute as applied to tribal members who sell cigarettes at "smoke shops" on the reservation, and seeking declaratory and injunctive relief. After finding that the actions were not barred by 28 U.S.C. 1341, which prohibits district courts from enjoining the assessment, levy, or collection of any state tax where a plain, speedy, and efficient remedy may be had in the state courts, the District Court held that Montana was barred from imposing cigarette sales taxes with respect to on-reservation sales by tribal members to Indians residing on the reservation, from imposing the vendor license fee on a tribal member operating a "smoke shop" on the reservation, and from imposing a personal property tax as a condition precedent for registration of a motor vehicle, but that the State may require a precollection of the cigarette sales tax imposed by law upon a non-Indian purchaser of cigarettes. Held: 1. The actions were not barred by 1341. The legislative history of 28 U.S.C. 1362, which gives district courts original jurisdiction of all civil actions brought by any Indian tribe wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States, indicates that in certain respects Indian tribes suing under this section were to be accorded treatment similar to that of the United States suing as a tribe's trustee, and therefore, since the United States is not barred by [425 U.S. 463, 464] 1341 from seeking to enjoin the enforcement of a state tax law, the Tribe is not barred from doing so in these cases. Pp. 470-475. 2. The tax on personal property located within the reservation, the vendor license fee, as applied to a reservation Indian conducting a cigarette business for the Tribe on reservation land, and the cigarette sales tax, as applied to on-reservation sales by Indians to Indians, conflict with the federal statutes that provide the basis for decision with respect to such impositions. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 ; Mescalero Apache Tribe v. Jones, 411 U.S. 145 . Pp. 475-481. (a) There is no basis for distinguishing McClanahan, supra, on the ground that the tribal members are now so completely integrated with the non-Indian residents on the reservation that there is no longer any reason to accord them different treatment from other citizens, where it appears that the Tribe has not abandoned its tribal organization, that the Federal Government, not just the State, has made substantial expenditures for various purposes beneficial to the reservation Indians, and that the Tribe's own income contributed to its economic well-being. P. 476. (b) Section 6 of the General Allotment Act, which provides that at the expiration of the Tribe's trust period and when the lands within the reservation have been conveyed to the Indians by patent in fee, then the allottees shall be subject to state laws, does not constitute a basis for permitting Montana to tax reservation Indians. To apply that statute so as to permit such taxation would result in an impractical pattern of "checkerboard" jurisdiction, now discredited by both Congress and this Court, whereby state or federal jurisdiction over the Indians would depend respectively on whether a particular parcel of land was "fee patented" or held in trust for the Tribe. Pp. 477-479. (c) The tax immunity for reservation Indians does not constitute invidious racial discrimination against non-Indians, contrary to the Due Process Clause of the Fifth Amendment, since such immunity meets the test that "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed," Morton v. Mancari, 417 U.S. 535, 555 . Pp. 479-480. 3. To the extent that the on-reservation "smoke shops" sell to non-Indians upon whom the State has validly imposed a sales tax with respect to the article sold, the State may require the Indian proprietor simply to add the tax to the sales price and [425 U.S. 463, 465] thereby aid the State's collection and enforcement of the tax. Such a requirement is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a lawful tax, and it does not frustrate tribal self-government or run afoul of any federal statute dealing with reservation Indians' affairs. Pp. 481-483. 392 F. Supp. 1297 and 392 F. Supp. 1325, affirmed. REHNQUIST, J., delivered the opinion for a unanimous Court. Sam E. Haddon, Special Assistant Attorney General of Montana, argued the cause for appellants in No. 74-1656 and appellees in No. 75-50. With him on the briefs were Robert L. Woodahl, Attorney General, and Jean A. Turnage, Special Assistant Attorney General. Richard A. Baenen argued the cause and filed a brief for appellees in No. 74-1656 and appellants in No. 75-50.Fn Fn [425 U.S. 463, 465] Briefs of amici curiae were filed by Slade Gorton, Attorney General, and Richard H. Holmquist, Assistant Attorney General, for the State of Washington; and by Michael Taylor for the Quinault Indian Nation. MR. JUSTICE REHNQUIST delivered the opinion of the Court. We are called upon in these appeals to resolve several questions arising out of a conflict between the asserted taxing power of the State of Montana and the immunity claimed by the Confederated Salish and Kootenai Tribes (Tribe) and its members living on the tribal reservation. Convened as a three-judge court, 1 the District Court for the District of Montana considered separate attacks on the State's cigarette sales and personal property taxes as applied to reservation Indians. After finding that the suits were not barred by the prohibition of 28 U.S.C. 1341, 2 [425 U.S. 463, 466] the District Court entered final judgments which, with one exception, sustained the Tribe's challenges, and from which the State has appealed (No. 74-1656). The Tribe has cross-appealed from that part of the judgments upholding tax jurisdiction over on-reservation sales of cigarettes by members of the Tribe to non-Indians. We noted probable jurisdiction under 28 U.S.C. 1253 and consolidated the appeal and cross-appeal. 3 423 U.S. 819 (1975). Concluding that the District Court had the power to grant injunctive relief in favor of the Tribe, and that it was correct on the merits, we affirm in both cases. I In 1855 an expanse of land stretching across the Bitter Root River Valley and within the then Territory of Washington was reserved for "the use and occupation" of the "confederated tribes of the Flathead, Kootenay, and Upper Pend d'Oreilles Indians," by the Treaty of Hell Gate, which in 1859 was ratified by the Senate and proclaimed by President Buchanan. 12 Stat. 975. Slightly over half of its 1.25 million acres is now owned in fee, by both Indians and non-Indians; most of the remaining half is held in trust by the United States for the Tribe. Approximately 50% of the Tribe's current membership of 5,749 resides on the reservation and in turn composes 19% of the total reservation population. Embracing portions of four Montana counties - Lake, Sanders, Missoula, and Flathead - the present reservation was generally described by the District Court: "The Flathead Reservation is a well-developed [425 U.S. 463, 467] agricultural area with farms, ranches and communities scattered throughout the inhabited portions of the Reservation. While some towns have predominantly Indians sectors, generally Indians and non-Indians live together in integrated communities. Banks, businesses and professions on the Reservation provide services to Indians and non-Indians alike. "As Montana citizens, members of the Tribe are eligible to vote and do vote in city, county and state elections. Some hold elective and appointed state and local offices. All services provided by the state and local governments are equally available to Indians and non-Indians. The only schools on the Reservation are those operated by school districts of the State of Montana. The State and local governments have built and maintain a system of state highways, county roads and streets on the Reservation which are used by Indians and non-Indians without restriction." 392 F. Supp. 1297, 1313 (1975). Joseph Wheeler, a member of the Tribe, leased from it two tracts of trust land within the reservation whereon he operated retail "smoke shops." Deputy sheriffs arrested Wheeler and an Indian employee for failure to possess a cigarette retailer's license and for selling nontax-stamped cigarettes, both misdemeanors under Montana law. These individuals, joined by the Tribe and the tribal chairmen, then sued 4 in the District Court for declaratory and injunctive relief against the State's cigarette tax and vendor-licensing statutes as applied to [425 U.S. 463, 468] tribal members who sold cigarettes within the reservation. 5 That court by a divided vote held that our decision in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973), barred Montana's efforts to impose its cigarette tax statutes on the Tribe's retail cigarette sales with one exception: it may require a precollection of the tax imposed by law upon the non-Indian purchaser of the cigarettes. 6 In a later action, the Tribe and four enrolled members, all residents of the reservation, challenged 7 Montana's [425 U.S. 463, 469] statutory scheme for assessment and collection of personal property taxes, in particular the imposition of such taxes on motor vehicles owned by tribal members residing on the reservation. 8 The District Court, again by a divided vote, found its earlier decision interpreting McClanahan controlling in the Tribe's favor. While recognizing, as did the Tribe, that a fee required for registration and issuance of state license plates for a motor vehicle could be exacted from Indians residing on the reservation, 9 the court held that the additional personal property tax which was likewise made a condition precedent for lawful registration of the vehicle could not be imposed on reservation Indians. [425 U.S. 463, 470] II The important threshold question in both cases is whether the District Court was prohibited from entertaining jurisdiction over these suits to restrain Montana's taxing authority, inasmuch as Congress has provided that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. 1341. By enacting this jurisdictional rule, Congress gave explicit sanction to the pre-existing federal equity practice: because interference with a State's internal economy is inseparable from a federal action to restrain state taxation, "`the mere illegality or unconstitutionality of a state . . . tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review if any federal question be involved.' Matthews v. Rodgers, [284 U.S. 521, 525-526 (1932)]." Great Lakes Co. v. Huffman, 319 U.S. 293 , 298 (1943). This broad jurisdictional barrier, however, has been held by this Court to be inapplicable to suits brought by the United States "to protect itself and its instrumentalities from unconstitutional state exactions." Department of Employment v. United States, 385 U.S. 355, 358 (1966). 10 [425 U.S. 463, 471] The District Court, citing Department of Employment and cases from other courts, concluded: "While the exceptions to 1341 have been expressed most often in terms of the Federal instrumentality doctrine, we do not view the exceptions as limited to cases where this doctrine is clearly applicable. It seems clear [that 1341] does not bar federal court jurisdiction in cases where immunity from state taxation is asserted on the basis of federal law with respect to persons or entities in which the United States has a real and significant interest." 392 F. Supp., at 1303 (emphasis added). In its brief the State argues that any reliance on the federal-instrumentality doctrine, either as such or as expanded by the District Court, for purposes of finding jurisdiction in these cases is contrary to the substantive decisions of this Court which "cut to the bone the proposition that restricted Indian lands and the proceeds from them were - as a matter of constitutional law - automatically exempt from state taxation." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150 (1973). See McClanahan, 411 U.S., at 170 n. 5; Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949); Oklahoma Tax Comm'n v. United States, 319 U.S. 598 (1943). We have indeed recently declined "the invitation to resurrect the expansive version of the intergovernmental-immunity doctrine that has been so consistently rejected" in this kind of case. Mescalero, supra, at 155. While the concept of a federal instrumentality may well have greater usefulness in determining the applicability of 1341, Department of Employment v. United States, supra, than in providing the touchstone for deciding whether or not Indian tribes may be taxed, Mescalero, supra, we do not believe that the District Court's expanded [425 U.S. 463, 472] version of this doctrine, quoted above, can by itself avoid the bar of 1341. The District Court, however, also relied on a more recent jurisdictional statute, 28 U.S.C. 1362, which provides: "The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States." Sections 1341 and 1362 do not cross-reference each other. Since presumably all actions properly within the jurisdiction of the United States district courts are authorized by one or another of the statutes conferring jurisdiction upon those courts, the mere fact that a jurisdictional statute such as 1362 speaks in general terms of "all" enumerated civil actions does not itself signify that Indian tribes are exempted from the provisions of 1341. 11 Looking to the legislative history of 1362 for whatever light it may shed on the question, we find an indication of a congressional purpose to open the federal courts to the kind of claims that could have been brought by the United States as trustee, but for whatever reason were not so brought. Section 1362 is characterized by the reporting House Judiciary Committee as providing "the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys." 12 [425 U.S. 463, 473] While this is hardly an unequivocal statement of intent to allow such litigation to proceed irrespective of other explicit jurisdictional limitations, such as 1341, it would appear that Congress contemplated that a tribe's access to federal court to litigate a matter arising "under the Constitution, laws, or treaties" would be at least in some respects as broad as that of the United States suing as the tribe's trustee. That the United States could have brought these actions, by itself or as coplaintiff, seems reasonably clear. In Heckman v. United States, 224 U.S. 413 (1912), the United States sued to cancel numerous conveyances by Cherokee allottees-grantors, who were not parties, as violative of federal restrictions upon the Indian's power of alienation. In the course of concluding that the United States had the requisite interest in enforcing these restrictions for the Indians' benefit, the Court discussed United States v. Rickert, 188 U.S. 432 (1903), which upheld the right of the Government to seek injunctive relief against county taxation directed at improvements on and tools used to cultivate land allotted to and occupied by the Sioux Indians. Of Rickert, the Court in Heckman stated: "But the decision [that the United States had the requisite interest] rested upon a broader foundation than the mere holding of a legal title to land in trust, and embraced the recognition of the interest of the United States in securing immunity to the Indians from taxation conflicting with the measures it had adopted for their protection." 224 U.S., at 441 . Here the United States could have made the same attack on the State's assertion of taxing power as was in [425 U.S. 463, 474] fact made by the Tribe. Heckman v. United States, supra. 13 We think that the legislative history of 1362, though by no means dispositive, suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf. Since the United States is not barred by 1341 from seeking to enjoin the enforcement of a state tax law, Department of Employment v. [425 U.S. 463, 475] United States, supra, we hold that the Tribe is not barred from doing so here. 14 III In McClanahan this Court considered the question whether the State had the power to tax a reservation Indian, a Navajo, for income earned exclusively on the reservation. We there looked to the language of the Navajo treaty and the applicable federal statutes "which define the limits of state power." 411 U.S., at 172 . Reading them against the "backdrop" of the Indian sovereignty doctrine, the Court concluded "that Arizona ha[d] exceeded its lawful authority" by imposing the tax at issue. Id., at 173. In Mescalero, the companion case, the import of McClanahan was summarized: "[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting [425 U.S. 463, 476] it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm'n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent." 411 U.S., at 148 . Aligning itself with the dissenting opinion below, the State first seeks to avoid McClanahan on two grounds: (1) the manner in which the Flathead Reservation has developed to its present state distinguishes it from the Navajo Reservation; (2) there does exist a federal statutory basis permitting Montana to tax. The State pointed below to a variety of factors: reservation Indians benefited from expenditures of state revenues for education, welfare, and other services, such as a sewer system; the Indians had the right to vote and to hold local and state office; and the Indian and non-Indian residents within the reservation were substantially integrated as a business and social community. The District Court also found, however, that the Federal Government "likewise made substantial payments for various purposes," and that the Tribe's own income contributed significantly to its economic well-being. 392 F. Supp., at 1314. Noting this Court's rejection of a substantially identical argument in McClanahan, see 411 U.S., at 173 , and n. 12, and the fact that the Tribe, like the Navajos, had not abandoned its tribal organization, the District Court could not accept the State's proposition that the tribal members "are now so completely integrated with the non-Indians . . . that there is no longer any reason to accord them different treatment than other citizens." 392 F. Supp., at 1315. In view of the District Court's findings, we agree that there is no basis for distinguishing McClanahan on this ground. [425 U.S. 463, 477] As to the second ground, we note that the State does not challenge the District Court's overall conclusion that the treaty and statutes upon which the Tribe relies in asserting the lack of state taxing authority "are essentially the same as those involved in McClanahan." 15 We agree, and it would serve no purpose to retrace our analysis in this respect in McClanahan, 411 U.S., at 173 -179. The State instead argues that the District Court failed to properly consider the effect of the General Allotment Act of 1887, 24 Stat. 388, and a later enactment in 1904, 33 Stat. 302, applying that Act to the Flathead Reservation. Section 6 of the General Allotment Act, 24 Stat. 390, as amended, 25 U.S.C. 349, provides in part: "At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee . . . then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside . . . ." The State relies on Goudy v. Meath, 203 U.S. 146 (1906), where the Court, applying the above section, rejected the claim of an Indian patentee thereunder that state taxing jurisdiction was not among the "laws" to which he and his land had been made subject. Building on Goudy and the fact that the General Allotment Act has never been explicitly "repealed," the State claims that Congress has never intended to withdraw Montana's taxing jurisdiction, and that such power continues to the present. [425 U.S. 463, 478] We find the argument untenable for several reasons. By its terms 6 does not reach Indians residing or producing income from lands held in trust for the Tribe, which make up about one-half of the land area of the reservation. If the General Allotment Act itself establishes Montana's jurisdiction as to those Indians living on "fee patented" lands, then for all jurisdictional purposes - civil and criminal - the Flathead Reservation has been substantially diminished in size. A similar claim was made by the State in Seymour v. Superintendent, 368 U.S. 351 (1962), to which we responded: "[The] argument rests upon the fact that where the existence or nonexistence of an Indian reservation, and therefore the existence or nonexistence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government." Id., at 358. We concluded that "[s]uch an impractical pattern of checkerboard jurisdiction," ibid., was contrary to the intent embodies in the existing federal statutory law of Indian jurisdiction. See also United States v. Mazurie, 419 U.S. 544, 554 -555 (1975). The State's argument also overlooks what this Court has recently said of the present effect of the General Allotment Act and related legislation of that era: "Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians [425 U.S. 463, 479] with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See 6 of the General Allotment Act, 24 Stat. 390 . . . ." Mattz v. Arnett, 412 U.S. 481, 496 (1973). "The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U.S.C. 461 et seq." Id., at 496 n. 18. The State has referred us to no decisional authority - and we know of none - giving the meaning for which it contends to 6 of the General Allotment Act in the face of the many and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands - statutes discussed, for example, in McClanahan, 411 U.S., at 173 -179. See also Kennerly v. District Court of Montana, 400 U.S. 423 (1971). Congress by its more modern legislation has evinced a clear intent to eschew any such "checkerboard" approach within an existing Indian reservation, and our cases have in turn followed Congress' lead in this area. A second, discrete claim advanced by the State is that the tax immunity extended by the District Court in applying federal law constitutes an invidious discrimination against non-Indians on the basis of race, contrary to the Due Process Clause of the Fifth Amendment. It is said that the Federal Government has forced this racially based exemption onto Montana so as to create a state statutory classification violative of the latter's duty under the Equal Protection Clause of the Fourteenth Amendment. We need not dwell at length on this constitutional argument, for assuming that the State has standing to raise it on behalf of its non-Indian citizens and taxpayers, [425 U.S. 463, 480] we think it is foreclosed by our recent decision in Morton v. Mancari, 417 U.S. 535 (1974). In reviewing the variety of statutes and decisions according special treatment to Indian tribes and reservations, we stated, id., at 552-555: "Literally every piece of legislation dealing with Indian tribes and reservations . . . single[s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. . . . . . "On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment." The test to be applied to these kinds of statutory preferences, which we said were neither "invidious" nor "racial" in character, governs here: "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Id., at 555. For these reasons, the personal property tax on personal property located within the reservation; the vendor license fee sought to be applied to a reservation Indian conducting a cigarette business for the Tribe on reservation land; and the cigarette sales tax, as applied to on reservation sales by Indians to Indians, 16 conflict with [425 U.S. 463, 481] the congressional statutes which provide the basis for decision with respect to such impositions. McClanahan, supra; Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). 17 IV The Tribe would carry these cases significantly further than we have done, however, and urges that the State cannot impose its cigarette tax on sales by Indians to non-Indians because "[i]n simple terms, [the Indian retailer] has been taxed, and . . . has suffered a measurable out-of-pocket loss." But this claim ignores the District Court's finding that "it is the non-Indian consumer or user who saves the tax and reaps the benefit of the tax [425 U.S. 463, 482] exemption." 392 F. Supp., at 1308. That finding necessarily follows from the Montana statute, which provides that the cigarette tax "shall be conclusively presumed to be [a] direct [tax] on the retail consumer precollected for the purpose of convenience and facility only." 18 Since nonpayment of the tax is a misdemeanor as to the retail purchaser, 19 the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax. Without the simple expedient of having the retailer collect the sales tax from non-Indian purchasers, it is clear that wholesale violations of the law by the latter class will go virtually unchecked. The Tribe asserts that to make the Indian retailer an "involuntary agent" for collection of taxes owed by non-Indians is a "gross interference with [its] freedom from state regulation," and cites Warren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685 (1965), as controlling. However, that case involved a gross income tax imposed on the on-reservation sales by the trader to reservation Indians. Unlike the sales tax here, the tax was imposed directly on the seller, and, in contrast to the Tribe's claim, there was in Warren no claim that the State could not tax that portion of the receipts attributable to on-reservation sales to non-Indians. Id., at 686 n. 1. Our conclusion in Warren that assessment and collection of that tax "would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations," id., at 691, does not apply to the instant case. [425 U.S. 463, 483] The State's requirement that the Indian tribal seller collect a tax validly imposed on non-Indians is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax. Since this burden is not, strictly speaking, a tax at all, it is not governed by the language of Mescalero, quoted supra, at 475-476, dealing with the "special area of state taxation." We see nothing in this burden which frustrates tribal self-government, see Williams v. Lee, 358 U.S. 217, 219 -220 (1959), or runs afoul of any congressional enactment dealing with the affairs of reservation Indians, United States v. McGowan, 302 U.S. 535, 539 (1938): "Enactments of the Federal Government passed to protect and guard its Indian wards only affect the operation, within the colony, of such state laws as conflict with the federal enactments." See also Thomas v. Gay, 169 U.S. 264, 273 (1898). We therefore agree with the District Court that to the extent that the "smoke shops" sell to those upon whom the State has validly imposed a sales or excise tax with respect to the article sold, the State may require the Indian proprietor simply to add the tax to the sales price and thereby aid the State's collection and enforcement thereof. For the foregoing reasons, the judgments of the District Court are Affirmed. Footnotes [Footnote 1 See 28 U.S.C. 2281. [Footnote 2 See Part II, infra, for the discussion of the jurisdictional question. [Footnote 3 For ease of reference, the various parties involved in the appeal and cross-appeal will be referred to simply as the State and the Tribe, except as otherwise noted. [Footnote 4 The defendants-appellants in the cigarette tax case are Montana's Department of Revenue, its director, and the sheriffs of the counties in which the "smoke shops" were located. No monetary relief has been sought in this action. [Footnote 5 Suit was brought shortly after the arrests. The record does not indicate whether criminal proceedings were instituted in state court, and in any case the State has made no claim as to the propriety of the District Court's entry of relief under Younger v. Harris, 401 U.S. 37 (1971), and related decisions of this Court. [Footnote 6 The District Court noted that the State's present statutory scheme contemplates advance payment or "precollection" of the sales tax by the retailer when he purchases his inventory from the wholesaler. Recognizing that its holding - a distinction between sales to Indians and to non-Indians - would result in "complicated problems" of enforcement by the State, the District Court deferred passing on these problems pending a decision by this Court. We, of course, express no opinion on this question. [Footnote 7 Named as defendants were various county officials, the State's Department of Revenue and its director, and the State itself. In contrast to the cigarette tax case, however, the plaintiffs, suing as representatives of all other members of the Tribe residing on the reservation, demanded a refund of personal property taxes paid to the date of the District Court's final judgment. In the opinion accompanying the District Court's judgment entering the requested declaratory and injunctive relief in favor of the Tribe and the individual Indians, it stated that "any further questions" were reserved pending this Court's final determination of the constitutionality of the personal property tax statutes. Our conclusions in Parts II and III, infra, that the District Court, with subject-matter jurisdiction over the Tribe's claims, properly entered injunctive relief in its favor implicitly embrace a finding that the Tribe, qua Tribe, has a discrete claim of injury with respect to these forms of state [425 U.S. 463, 469] taxation so as to confer standing upon it apart from the monetary injury asserted by the individual Indian plaintiffs. Since the substantive interest which Congress has sought to protect is tribal self-government, such a conclusion is quite consistent with other doctrines of standing. See, e. g., Warth v. Seldin, 422 U.S. 490, 498 -499 (1975). Whether in like fashion standing rests in the Tribe to litigate the pending individual refund claims is a question properly left for the District Court as and when these claims are pursued, and we express no opinion thereon. We note, however, that if only the individual Indians have standing to sue for refunds, their claims must be properly grounded jurisdictionally. See, e. g., Zahn v. International Paper Co., 414 U.S. 291, 294 (1973). [Footnote 8 The Tribe and the individual members had earlier filed an identical attack against Montana's personal income tax as applied to income earned by tribal members on the reservation. Shortly after this Court's decision in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973), the State stipulated that McClanahan barred its taxing jurisdiction in this respect and agreed to cease voluntarily its collection efforts and make refunds. Relying on this settlement, the Tribe thereafter requested the State's Attorney General to order a similar cessation with respect to personal property taxes. Advised that its request was rejected, the Tribe instituted this action. [Footnote 9 The Tribe has from the beginning expressly disclaimed any immunity from this nondiscriminatory vehicle registration fee. [Footnote 10 There the United States sought injunctive relief against certain state taxation of its coplaintiff, the American National Red Cross, which on the merits this Court held was immune from same as a federal instrumentality. [Footnote 11 Section 1341 itself, of course, includes a proviso that the remedy in state court must be "plain, speedy and efficient." The Tribe does not claim that it would not have had such a remedy under Montana law. [Footnote 12 H. R. Rep. No. 2040, 89th Cong., 2d Sess., 2-3 (1966). [Footnote 13 Heckman and Rickert were both cases in which the protection asserted by the United States on behalf of the Indians was grounded in the federal-instrumentality doctrine. Since Mescalero, as we have noted, effectively eliminated that doctrine as a basis for immunizing Indians from state taxation, there might appear to be a certain inconsistency in our reliance on Heckman. But the question of whether the United States has standing (Heckman used the term "capacity") to sue on behalf of others is analytically distinct from the question of whether the substantive theory on which it relies will prevail, and each is in turn separate from whether injunctive relief can issue at the United States' behest irrespective of 1341. Department of Employment, see supra, at 470, and n. 10, did not hold that the United States had standing only in actions falling within the federal-instrumentality doctrine. Cases in the lower federal courts cited therein ( 385 U.S., at 358 n. 6), e. g., United States v. Arlington County, Virginia, 326 F.2d 929, 931-933 (CA4 1964), and other cases from this Court, see In re Debs, 158 U.S. 564, 584 (1895); United States v. San Jacinto Tin Co., 125 U.S. 273, 284 -286 (1888), indicate otherwise. The proper basis for the protection asserted here, of course, is not the federal-instrumentality doctrine eschewed in Mescalero, but is that which McClanahan identified, i. e., that state taxing jurisdiction has been pre-empted by the applicable treaties and federal legislation. While not deciding what limits there are upon the United States' standing to sue absent enabling legislation, we conclude that the relationship between the United States and the Tribe - grounded in the Hell Gate Treaty and a century of subsequent legislation - would have established the former's standing to raise the pre-emption claim on behalf of the latter, and that an injunctive remedy to enforce that claim would not have been barred by 1341. [Footnote 14 The District Court went on to find jurisdiction over the individual Indian plaintiffs in both actions on the basis of 28 U.S.C. 1343 (3), together with their allegation that these taxes deprived them of a right secured by the Commerce Clause. Noting that 1362 by its terms goes only to an "Indian tribe or band," the State has argued that to hold 1341 inapplicable merely because the state tax is attacked on constitutional grounds virtually strips it of force and is contrary to other federal-court decisions: Bland v. McHann, 463 F.2d 21 (CA5 1972), cert. denied, 410 U.S. 966 (1973); American Commuters Assn., Inc. v. Levitt, 405 F.2d 1148 (CA2 1969). Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 542 n. 6 (1972). The Tribe's brief does not discuss this aspect of the District Court's holding. We need not decide this question, however, since all of the substantive issues raised on appeal can be reached by deciding the claims of the Tribe alone, which did bring this action in the District Court under 1362. See n. 7, supra. Cf. California Bankers Assn. v. Shultz, 416 U.S. 21 (1974). Any further proceedings with respect to refund claims by or on behalf of individual Indians, see n. 7, supra, would not appear to implicate 1341. [Footnote 15 The quotation is taken from the first (unpublished) opinion of the District Court, Civ. No. 2145 (Mont., Oct. 10, 1973), Jurisdictional Statement, App. 73, 81 n. 9, the conclusions of which with respect to McClanahan were reaffirmed in the later opinions filed May 10, 1974, February 4, 1975, and March 19, 1975, published at 392 F. Supp. 1297, 1312; 392 F. Supp. 1325. [Footnote 16 The District Court noted two further distinctions within its ruling. It extended its holding to sales of cigarettes to Indians [425 U.S. 463, 481] living on the Flathead Reservation irrespective of their actual membership in the plaintiff Tribe. The State has not challenged this holding, and we therefore do not disturb it. Secondly, while recognizing that different rules may apply "where Indians have left the reservation and become assimilated into the general community," McClanahan, 411 U.S., at 171 , the District Court on the present record did not decide whether the cigarette sales tax would apply to on-reservation sales to Indians who resided off the Flathead Reservation. That question, too, is therefore not before us. [Footnote 17 It is thus clear that the basis for the invalidity of these taxing measures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U.S. Const., Art. VI, cl. 2, and not any automatic exemptions "as a matter of constitutional law" either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M`Culloch v. Maryland, 4 Wheat. 316 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U.S.C. 2281. Swift & Co. v. Wickham, 382 U.S. 111 (1965). Here, however, the District Court properly convened a 2281 court, because at the outset the Tribe's attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescalero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U.S. 512 (1973). [Footnote 18 Mont. Rev. Code Ann. 84-5606 (1) (1947). [Footnote 19 84-5606.18, 84-5606.31 (Supp. 1975). [425 U.S. 463, 484]

liberal

public_entity

civil_rights

1953-007-02

United States Supreme Court TOOLSON v. NEW YORK YANKEES(1953) No. 18 Argued: October 13, 1953Decided: November 9, 1953 The judgments in these cases are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 , so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws. Pp. 356-357. 200 F.2d 198, 202 F.2d 413, 428, affirmed. [Footnote * Together with No. 23, Kowalski v. Chandler, Commissioner of Baseball, et al., argued October 13-14, 1953, and No. 25, Corbett et al. v. Chandler, Commissioner of Baseball, et al., argued October 14, 1953, both on certiorari to the United States Court of Appeals for the Sixth Circuit. Howard C. Parke argued the cause for petitioner in No. 18. With him on the brief was Gene M. Harris. Frederic A. Johnson argued the cause for petitioner in No. 23 and Seymour Martinson argued the cause for petitioners in No. 25. With them on the briefs were Maurice H. Koodish and Edward Martinson. Norman S. Sterry argued the cause and filed a brief for respondents in No. 18. Raymond T. Jackson argued the cause for respondents in Nos. 23 and 25. With him on the briefs were Benjamin F. Fiery and Louis F. Carroll. Thomas Reed Powell filed a brief for the Boston American League Base Ball Company in No. 18, as amicus curiae, urging affirmance. PER CURIAM. In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 [346 U.S. 356, 357] (1922), this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws. Affirmed. MR. JUSTICE BURTON, with whom MR. JUSTICE REED concurs, dissenting. Whatever may have been the situation when the Federal Baseball Club case 1 was decided in 1922, I am not able to join today's decision which, in effect, announces that organized baseball, in 1953, still is not engaged in interstate trade or commerce. In the light of organized baseball's well-known and widely distributed capital investments used in conducting competitions between teams constantly traveling between states, its receipts and expenditures of large sums transmitted between states, its numerous purchases of materials in interstate commerce, [346 U.S. 356, 358] the attendance at its local exhibitions of large audiences often traveling across state lines, its radio and television activities which expand its audiences beyond state lines, its sponsorship of interstate advertising, and its highly organized "farm system" of minor league baseball clubs, coupled with restrictive contracts and understandings between individuals and among clubs or leagues playing for profit throughout the United States, and even in Canada, Mexico and Cuba, it is a contradiction in terms to say that the defendants in the cases before us are not now engaged in interstate trade or commerce as those terms are used in the Constitution of the United States and in the Sherman Act. 2 In 1952 the Subcommittee on Study of Monopoly Power, of the House of Representatives Committee on the Judiciary, after extended hearings, issued a report dealing with organized baseball in relation to the Sherman Act. In that report it said: "`Organized baseball' is a combination of approximately 380 separate baseball clubs, operating in 42 different States, the District of Columbia, Canada, Cuba, and Mexico . . . . "Inherently, professional baseball is intercity, intersectional, and interstate. At the beginning of the 1951 season, the clubs within organized baseball were divided among 52 different leagues. Each league is an unincorporated association of from 6 to 10 clubs which play championship baseball games among [346 U.S. 356, 359] themselves according to a prearranged schedule. Such a league organization is essential for the successful operation of baseball as a business. . . . . . "Of the 52 leagues associated within organized baseball in 1951, 39 were interstate in nature." 3 [346 U.S. 356, 360] In the Federal Baseball Club case the Court did not state that even if the activities of organized baseball amounted to interstate trade or commerce those activities were exempt from the Sherman Act. The Court acted on its determination that the activities before it did not amount to interstate commerce. The Court of Appeals for the District of Columbia, in that case, in 1920, described a major league baseball game as "local in its beginning and in its end." 4 This Court stated that "The business is giving exhibitions of base ball, which are purely state affairs," and the transportation of players and equipment between states "is a mere incident . . . ." 5 The main thrust of the argument of counsel for organized baseball, both in the Court of Appeals and in this Court, was in support of that proposition. 6 Although counsel did argue that the activities of organized baseball, even if amounting to interstate commerce, did not violate the Sherman Act, 7 the Court significantly refrained from expressing its opinion on that issue. That the Court realized that the then incidental interstate features of organized baseball might rise to a magnitude that would compel recognition of them independently is indicated by the statement made in 1923 by Mr. Justice Holmes, the writer of the Court's opinion in the Federal Baseball Club case. In 1923, in considering a bill in equity alleging a violation of the Sherman Act by parties presenting local exhibitions on an interstate vaudeville circuit, the Court held that the bill should be considered on its merits and, in writing for the Court, [346 U.S. 356, 361] Mr. Justice Holmes said "The bill was brought before the decision of the Base Ball Club Case, and it may be that what in general is incidental, in some instances may rise to a magnitude that requires it to be considered independently." 8 The 1952 report of the Congressional Subcommittee previously mentioned also said: "Under judicial interpretations of this constitutional provision [the commerce clause], the Congress has power to investigate, and pass legislation dealing with professional baseball, or more particularly `organized baseball,' if that business is, or affects, interstate commerce. . . . . . "After full review of all of the foregoing facts and with due consideration of modern judicial interpretation of the scope of the commerce clause, it is the studied judgment of the Subcommittee on the Study of Monopoly Power that the Congress has jurisdiction to investigate and legislate on the subject of professional baseball." H. R. Rep. No. 2002, 82d Cong., 2d Sess. 4, 7, and see 111-139. 9 [346 U.S. 356, 362] In cases Nos. 18 and 23 the plaintiffs here allege that they are professional baseball players who have been damaged by enforcement of the standard "reserve clause" in their contracts pursuant to nationwide agreements among the defendants. 10 In effect they charge that in [346 U.S. 356, 363] violation of the Sherman Act, organized baseball, through its illegal monopoly and unreasonable restraints of trade, exploits the players who attract the profits for the benefit of the clubs and leagues. Similarly, in No. 25, the [346 U.S. 356, 364] plaintiffs allege that because of illegal and inequitable agreements of interstate scope between organized baseball and the Mexican League binding each to respect the other's "reserve clauses" they have lost the services of and contract rights to certain baseball players. The plaintiffs also allege that the defendants have entered into a combination, conspiracy and monopoly or an attempt to monopolize professional baseball in the United States to the substantial damage of the plaintiffs. Conceding the major asset which baseball is to our Nation, the high place it enjoys in the hearts of our people and the possible justification of special treatment for organized sports which are engaged in interstate trade or commerce, the authorization of such treatment is a matter within the discretion of Congress. 11 Congress, however, has enacted no express exemption of organized baseball from the Sherman Act, and no court has demonstrated the existence of an implied exemption from that Act of any sport that is so highly organized as to amount to an interstate monopoly or which restrains interstate trade or commerce. In the absence of such an exemption, the present [346 U.S. 356, 365] popularity of organized baseball increases, rather than diminishes, the importance of its compliance with standards of reasonableness comparable with those now required by law of interstate trade or commerce. It is interstate trade or commerce and, as such, it is subject to the Sherman Act until exempted. Accordingly, I would reverse the judgments in the instant cases and remand the causes to the respective District Courts for a consideration of the merits of the alleged violations of the Sherman Act. Footnotes [Footnote 1 Federal Baseball Club v. National League, 259 U.S. 200 . [Footnote 2 Compare Paul v. Virginia, 8 Wall. 168, and Hooper v. California, 155 U.S. 648 , with United States v. South-Eastern Underwriters Assn., 322 U.S. 533 , and Lorain Journal Co. v. United States, 342 U.S. 143 . See also, Times-Picayune Publishing Co. v. United States, 345 U.S. 594 ; United States v. National Assn. of Real Estate Boards, 339 U.S. 485 ; United States v. Crescent Amusement Co., 323 U.S. 173 ; American Medical Assn. v. United States, 317 U.S. 519 . [Footnote 3 H. R. Rep. No. 2002, 82d Cong., 2d Sess. 4, 5. "The primary sources of revenue for baseball clubs are admissions, radio and television, and concessions. The following table indicates the combined revenue of the 16 major-league clubs from these sources for the years 1929, 1939, and 1950. "Major league revenue "[In thousands of dollars] --------------------------------------------------------------------- "Source of revenue 1929 1. 1939 1950 --------------------------------------------------------------------- Home games ................... 6,559.1 6,766.6 18,334.8 Road games ................... 2,221.4 2,320.2 4,517.8 Exhibition games ............. 422.6 515.7 911.5 Radio and television ......... 0 884.5 3,365.5 Concessions (net) ............ 582.8 850.3 2,936.3 Other ........................ 733.4 776.0 1,969.6 -------------------------------------- Gross receipts .......... 10,519.5 12,113.3 32,035.5 --------------------------------------------------------------------- "1. Data unavailable for 2 clubs: Chicago, American League; and Pittsburgh, National League. . . . . . "The fastest-growing source of revenue for major league clubs is radio and television. Receipts from these media of interstate commerce were nonexistent in 1929. In 1939, 7.3 percent of the clubs' revenue came from this source; and in 1950, this share rose to 10.5 percent. "Portrayed in absolute terms, the growing importance of radio and television becomes even more pronounced. Receipts rose from nothing in 1929 to $884,500 in 1939 and $3,365,500 in 1950. Reported income from primary radio and television contracts for 1951 indicate that this sharp increase is continuing. . . . To this must be added $110,000 for the sale of radio and television rights to the 1951 all-star game and $1,075,000 for the sale of similar rights to the 1951 world series." Id., at 5-6. [Footnote 4 National League v. Federal Baseball Club, 50 App. D.C. 165, 169, 269 F. 681, 685. [Footnote 5 259 U.S., at 208 , 209. [Footnote 6 See brief for appellants in the Court of Appeals, pp. 45-67; brief for defendants in error in this Court, pp. 45-66. [Footnote 7 See brief for appellants in Court of Appeals, pp. 68-72; brief for defendants in error in this Court, pp. 66-72. [Footnote 8 Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274 , and see North American Co. v. S. E. C., 327 U.S. 686, 694 . [Footnote 9 In opposing approval of four exclusionary bills then pending, the Subcommittee did not take the stand that organized baseball and other comparable sports, although constituting interstate trade or commerce, already are exempt from the broad coverage of the Sherman Act. On the contrary, it said: "Four bills have been introduced in the Congress, three in the House, one in the Senate, intending to give baseball and all other professional sports a complete and unlimited immunity from the antitrust laws. The requested exemption would extend to all professional sports enterprises and to all acts in the conduct of such enterprises. The law would no longer require competition in any facet of business activity of any sport enterprise. Thus the sale [346 U.S. 356, 362] of radio and television rights, the management of stadia, the purchase and sale of advertising, the concession industry, and many other business activities, as well as the aspects of baseball which are solely related to the promotion of competition on the playing field, would be immune and untouchable. Such a broad exemption could not be granted without substantially repealing the antitrust laws." Id., at 230. [Footnote 10 "The reserve clause is popularly believed to be some provision in the player contract which gives to the club in organized baseball which first signs a player a continuing and exclusive right to his services. Commissioner Frick testified that this popular understanding was essentially correct. He pointed out, however, that the reserve clause is not merely a provision in the contract, but also incorporates a reticulated system of rules and regulations which enable, indeed require, the entire baseball organization to respect and enforce each club's exclusive and continuous right to the services of its players." H. R. Rep. No. 2002, 82d Cong., 2d Sess. 111. See also, Section VII, The Reserve Clause, id., at 111-139, and Gardella v. Chandler, 172 F.2d 402. In No. 18 the following specific allegations appear and those in No. 23 are comparable: "XI. "That the Defendants, and each of them, have entered into or agreed to be bound by a contract in the restraint of Interstate Commerce; that said contract is designated as the Major-Minor League Agreement, dated December 6, 1946, and provides in effect that: "1. All players' contracts in the Major Leagues shall be of one form and that all players' contracts in the Minor Leagues shall be of one form. "2. That all players' contracts in any league must provide that the Club or any assignee thereof shall have the option to renew the player's contract each year and that the player shall not play for any other club but the club with which he has a contract or the assignee thereof. "3. That each club shall, on or before a certain date each year, designate a reserve list of active and eligible players which it desires [346 U.S. 356, 363] to reserve for the ensuing year. That no player on such a reserve list may thereafter be eligible to play for any other club until his contract has been assigned or until he has been released. "4. That the player shall be bound by any assignment of his contract by the club, and that his remuneration shall be the same as that usually paid by the assignee club to other players of like ability. "5. That there shall be no negotiations between a player and any other club from the one which he is under contract or reservation respecting employment either present or prospective unless the Club with which the player is connected shall have in writing expressly authorized such negotiations prior to their commencement. "6. That in the case of Major League players, the Commissioner of Baseball and in the case of Minor League players, the President of the National Association, may determine that the best interests of the game require a player to be declared ineligible and, after such declaration, no club shall be permitted to employ him unless he shall have been reinstated from the ineligible list. "7. That an ineligible player whose name is omitted from a reserve list shall not thereby be rendered eligible for service unless and until he has applied for and been granted reinstatement. "8. That any player who violates his contract or reservation, or who participates in a game with or against a club containing or controlled by ineligible players or a player under indictment for conduct detrimental to the good repute of professional baseball, shall be considered an ineligible player and placed on the ineligible list. "9. That an ineligible player must be reinstated before he may be released from his contract. "10. That clubs shall not tender contracts to ineligible players until they are reinstated. "11. That no club may release unconditionally an ineligible player unless such player is first reinstated from the ineligible list to the active list. . . . . . "XIII. "That by reason of Plaintiff being placed and held on said ineligible list as hereinabove set out and the making of the aforementioned contract by the Defendants, the Defendant[s], and each of them, have [346 U.S. 356, 363] refused since the 25th day of May, 1950, and still do refuse to allow Plaintiff to play professional baseball, and that Plaintiff has thereby been deprived of his means of livelihood, all to the Plaintiff's damages in the sum of $125,000.00." The complaint also contains a separate cause of action alleging that the defendants, by virtue of their agreements, have entered into a combination and conspiracy in the restraint of trade or commerce among the several states, and another cause of action alleging that the defendants have, by their agreements, combined to monopolize professional baseball in the United States. [Footnote 11 E. g., Congress has expressly exempted certain specific activities from the Sherman Act, as in 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 17 (labor organizations), in the Capper-Volstead Act, 42 Stat. 388-389, 7 U.S.C. 291, 292 (farm cooperatives), and in the McCarran-Ferguson Act, 59 Stat. 34, 61 Stat. 448, 15 U.S.C. (Supp. V) 1013 (insurance). And see Apex Hosiery Co. v. Leader, 310 U.S. 469, 501 , 512. [346 U.S. 356, 366]

conservative

other

economic_activity

1949-015-02

United States Supreme Court PARKER V. LOS ANGELES COUNTY(1949) No. 49 Argued: November 8, 1949Decided: December 5, 1949 Messrs. John T. McTernan, A. L. Wirin, Los Angeles, Cal., for petitioner. [ Parker v. Los Angeles County 338 U.S. 327 (1949) ] [338 U.S. 327 , 328] Mr. Gerald G. Kelly, Los Angeles, Cal., for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. In No. 49, twenty-five classified civil servants of the County of Los Angeles brought an action in the Superior Court of that County, and in No. 50, suit was brought by one such employee. The respective plaintiffs sought relief against enforcement by the County and its officials of what is colloquially known as a loyalty test, and they did so for themselves and 'in a representative capacity * * * on behalf of 20,000 employees of Los Angeles County similarly situated.' The plaintiffs, petitioners here, alleged that on August 26, 1947, the Board of Supervisors of the County of Los Angeles adopted as part of its 'Loyalty Check' program the requirement that all County employees execute a prescribed affidavit. It consisted of four parts, fully set forth in the Appendix. By Part A each employee is required to support the Constitution of the United States, and the Constitution and laws of the State of California; by Part B he forswears that since December 7, 1941, he has been a member of any organization advocating the [338 U.S. 327 , 329] forcible overthrow of the Government of the United States or of the State of California or of the County of Los Angeles, that he now advocates such overthrow, or that he will in the future so advocate directly or through an organization; by Part C he is required to list his aliases; and by Part D he is asked to indicate whether he has ever been 'a member of, or directly or indirectly supported or followed' any of an enumerated list of 145 organizations. Asserting fear of penalizing consequences from the loyalty program, and claiming that the law of California and the Constitution of the United States barred coercive measures by the County to secure obedience to the alleged affidavit requirement, petitioners brought these actions. Demurrers to the complaints were sustained by the Superior Court and its judgments were affirmed by the District Court of Appeal for the Second Appellate District. 88 Cal.App.2d 481, 199 P.2d 429. After the Supreme Court of California denied discretionary review we brought the case here because, on the showing then before us, serious questions seemed raised as to the scope of a State's power to safeguard its security with due regard for the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. 337 U.S. 929 . In view, however, of the circumstances that became manifest after the cases came to argument, we are precluded from reaching these constitutional issues on their merits. To begin with, the California decision under review does not tell us unambiguously what compulsion, if any, the loyalty order of August 26, 1947, carried. It is unequivocally clear that the lower court refused to decide whether an employee who discloses his so-called 'subversive' activities or connections may for that reason be discharged. It is not clear, however, whether, as petitioners contend, the lower court meant to hold that the [338 U.S. 327 , 330] Board of Supervisors may discharge an employee who refuses to file an affidavit. 1 This ambiguity renders so doubtful whether an issue under the United States Constitution is before us that at most we would exercise jurisdiction to obtain clarification by the State court. See Honeyman v. Hanan, 300 U.S. 14 ; State of Minnesota v. National Tea Co., 309 U.S. 551 ; State Tax Commission of Utah v. Van Cott, 306 U.S. 511 ; Herb v. Pitcairn, 324 U.S. 117 . But the circumstances which were called to our attention after the cases reached us leave no doubt that the issues which lead us to bring them here are not ripe for constitutional adjudication. American Wood Paper [338 U.S. 327 , 331] Co. v. Heft, 8 Wall. 333; Id., 131 U.S.Append. xcii; Commercial Cable Co. v. Burleson, 250 U.S. 360 . As of July 20, 1948, nearly a year after the original loyalty order, all but 104 of the 22,000 officers and employees of the County had executed the prescribed affidavit. On that day, these noncomplying employees were advised that the Board of Supervisors had adopted an order providing (1) that unless they had executed Parts A, B and C of the affidavit by July 26 they would be discharged, and (2) that unless they had executed Part D by that time they would be discharged 'if and when the loyalty test litigation now pending is finally concluded with a determination that the County was justified in requiring from its employees the information embodied in Paragraph 'D."2 This order was the first explicit announcement of sanctions by the Board in furtherance of its loyalty program. By July 26 the entire affidavit had been executed by all but 45 employees. Of these, 29 had executed only Parts A, B and C. Sixteen stood their ground against any compliance. They invoked their administrative remedy of review before the Civil Service Commission which decided against them. On June 24 of this year these sixteen discharged employees sought a writ of mandate from the Superior Court of the County of Los Angeles to review the decision of the Civil Service Commission, with a prayer for reinstatement and back pay. We are advised that this litigation is now pending in the Superior Court. The petitioners here, except one in No. 49, signed Parts A, B and C, and that petitioner is a party in the case before the Superior Court. [338 U.S. 327 , 332] From this it appears that the California courts have before them for the first time since the inception of the loyalty program an order which expressly threatens sanctions. These sanctions are being challenged under State law as well as under the United States Constitution. For all we know the California courts may sustain these claims under local law. 3 The present cases are here from an intermediate State appellate court because the State Supreme Court did not deem the records before it to present issues deserving of its discretionary review. The explicit sanctions of the modified order may lead the Supreme Court of California to pass on them should the litigation now pending in the lower courts go against the contentions of these petitioners. It is relevant to note that when claims not unrelated to those now urged before us, but based on State law, have come before the Supreme Court of California that tribunal has not been insensitive to them. See Communist Party of United States of America v. Peek, 20 Cal.2d 536, 127 P.2d 889; James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900. If their claims are recognized by the California courts, petitioners would of course have no basis for asserting denial of a Federal right. It will be time enough for the petitioners to urge denial of a Federal right after the State courts have definitively denied their claims under State law. Due regard for our Federal system requires that this Court stay its hand until the opportunities afforded by State courts have exhausted claims of litigants under [338 U.S. 327 , 333] State law. This is not what is invidiously called a technical rule. The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity. Decent respect for California and its courts demands that this Court wait until the State courts have spoken with knowledge of the events brought to light for the first time at the bar of this Court. Since the writs must be dismissed because constitutional questions which brought these cases here are not ripe for decision, all subsidiary questions fall. See Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549, 585 , 1427; Alabama State Federation of Labor, Local Union No. 103, United Brotherhood of Carpenters and Joiners of America v. McAdory, 325 U.S. 450 ; C.I.O. v. McAdory, 325 U.S. 472 . Dismissed. Mr. JUSTICE DOUGLAS took no part in the consideration or disposition of these cases. Appendix. The affidavit prescribed by the Board of Supervisors of the County of Los Angeles on August 26, 1947, as part of its 'Loyalty Check' program is as follows: Oath and Affidavit Department .......... A. Oath of Office or Employment I, ......, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of California, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well [338 U.S. 327 , 334] and faithfully discharge the duties of the office or employment on which I am about to enter or am now engaged. So Help Me God. B. Affidavit re Subversive Activity I do further swear (or affirm) that I do not advocate, nor am I now a member, nor have I been since December 7, 1941, a member of any political party or organization that advocates the overthrow of the Government of the United States, or State of California, or County of Los Angeles, by force or violence, except those specified as follows: ...... and that during such time as I am an officer or employee of the County of Los Angeles, I will not advocate nor become a member of any political party or organization that advocates the overthrow of the Government of the United States, or State of California, or County of Los Angeles by force or violence. C. Affidavit re Aliases I do further swear (or affirm) that I have never used or been known by any names other than those listed as follows: ............ D. Membership in Organizations I do further swear (or affirm) that I have never been a member of, or directly or indirectly supported or followed any of the hereinafter listed organizations, except those which I indicate by an X mark. NAME Abraham Lincoln Brigade. Academic and Civil Rights Council of California. After School Clubs. Agitprop. American Artists Congress. [338 U.S. 327 , 335] America for Americans. American Comm. for a Free Idonesia. American Comm. for Democracy and Intellectual Freedom. American Comm. for Protection of the Foreign Born. American Comm. to Save Refugees. Americans Communications Assn. American Communist Party. American Council on Soviet Relations. American Federation for Political Unity. American Friends of the Chinese People. American Guard. American League Against War and Fascism. American League for Peace and Democracy. American League of Christian Women. American Peace Mobilization. American Russian Institute. American Society for Technical Aid for Spain. American Student Union. American Veterans Comm. American Writers Congress. American Youth Congress. American Writers School. American Youth for Democracy. Anti-Axis Comm. Anti-Hearst Examiner. Anti-Nazi League. Anti-Nazi League of Hollywood. Anti-ROTC Committee Arcos Limited. Artist Front to Win the War. Arts Advisory Council. Authors League. Ballila. Bay Area Council Against Discrimination. [335-Continued.] California Conference for Democratic Action. California Labor School. California Youth Legislature. Centro Anti-Communists. China Aid Council of American League for Peace and Democracy. Citizens Committee for Better Education. Citizens Comm. for Defense of Mexican-American Youth. Citizens Comm. to Free Earl Browder. Citizens Comm. to Support Labors Right. Citizens No Foreign Wars Coalition. Civil Rights Congress. Civil Rights Council for Northern California. Comintern. Comm. for Boycott Against Japanese Aggression. Comm. for Defense of Mexican-American Youth. Comm. for Support of S. W. Garson. Comm. Protesting Attacks Against the Abraham Lincoln Brigade. Comm. to Defend America by Keeping Out of War. Communist International. [338 U.S. 327 , 336] Communist Party's Little Theatre. Communist Workers School. Communist Political Assn. Conference for Democratic Action. Consumers National Federation. Contemporary Theatre. Co-ordinating Commission to Lift Embargo (To Spain). Council for Pan American Democracy. Cultural and Professional Projects Assn. Congress of Mexican and Spanish-Mexican Peoples of U.S. Daily Worker. Democratic Youth Federation. Elizabeth Curley Flynn Club. Elizalde Anti-Discrimination Comm. Emergency Comm. to Aid Spain. Emergency Trade Union Conference to Aid Spanish Democracy. Ex Combattanti Society. Farmer Labor Party. Federation of Architects, Engineers, Chemists and Technicians. Field Workers School. First Congress of Mexican and Spanish-American People of U.S. Friends of Soviet Russia. Friends of Soviet Union. German-American Bund. Greater New York Emergency Conference on Inalienable Rights. Harry Bridges Defense Commn. Hold the Price Line Commn. Hollywood Anti Nazi League. [336-Continued.] Hollywood Cultural Commission. Hollywood Community Radio Group. Hollywood Independent Citizens Comm. of Arts, Sciences and Professions. Hollywood League for Democratic Action. Hollywood Theatre Alliance. Hollywood Writers Mobilization. Humanist Society of Friends. Independent Citizens Comm. of Arts, Sciences and Professions. International Labor Defense. International Red Aid. International Workers Order. Jewish Peoples Committee. John Reed Clubs. Joint Committee for Trade Union Rights. Joint Anti-Fascists Refugee Committee. League Against War and Fascism. League for Democratic Action. League for Peace and Democracy. League for American Writers. League for Struggle for Negro Rights. League of Women Shoppers. League to Save America First. Los Angeles County Political Commission. Los Angeles County Trade Union Commission. Mooney Defense Commission. [338 U.S. 327 , 337] Marine Cooks and Stewards Union. Maritime Federation of the Pacific. Mobilization for Democracy. Motion Picture Cooperative Buyers Guild. Motion Picture Democratic Committee. National Citizens Political Action Committee. National Committee to Abolish the Poll Tax. National Council on Soviet American Friendship. National Emergency Conference. National Federation for Constitutional Liberties. National Negro Women's Council. National Negro Congress. National Students League. New Masses. New Theatre League. North American Commission to Aid Spanish Democracy. Pen and Hammer Club. Peoples Council of America. Peoples Front. Progressive Comm. to Rebuild the American Labor Party. Refugee Scholarship and Peace Comm. Second Annual California Model Legislature. Simon J. Lubin Society. Social Problems Club. Spanish Relief Committee. Student Rights Assn. United Farmers League. United Federal Workers. Western Workers. Workers Alliance. World Committee Against War. Workers School. Young Communist League. The Young Pioneers. Footnotes 1. Clearly enough some discharges or demotions of classified employees by the Board of Supervisors are not final. The division of authority between the Board and the County Civil Service Commission is thus formulated by the lower court: 'In case the appointing power wishes to discharge a civil service employee the reasons therefor must be given and, thereupon, if the employee so desires he is entitled to a hearing before the commission. If the commission finds that the reasons are not sufficient, the discharge is void, despite anything the appointing power can do about it. 'From what has so far been said, it is self-evident that neither the Board nor its agents can discharge a civil service employee for any cause that the Civil Service Commission finds insufficient. Accordingly, if in the view of the Board of Supervisors, or its agents as the appointing power, a civil service employee should be discharged on the sole ground that the employee is 'subversive', the discharge or attempt to discharge on that ground is of no effect if, on hearing, the commission holds otherwise. 'Whether the appointing power will or will not discharge employees as claimed by the plaintiffs, for causes of the character enumerated, and whether the Civil Service Commission will uphold such discharges, if any, on such causes, are not matters upon which this Court may speculate or adjudicate at this time. * * *' 88 Cal.App.2d 481, 493, 497, 199 P.2d 429, 436, 438Ä439. See Los Angeles County Charter, Art. IX, 34(13) in Cal. Laws 1913, p. 1495, as amended, Cal.Stat.1939, p. 3147. 2. The affidavit in the order of July 20, 1948, differed from the affidavit in the original order only in that Part B was elucidated to an extent not here relevant and a few organizations listed in Part D were omitted. 3. Article IX, 41 of the Los Angeles Charter provides: 'No person in the classified service, or seeking admission thereto, shall be appointed, reduced or removed or in any way favored or discriminated against because of his political or religious opinions or affiliations.' Cal.Laws 1913, p. 1496. Article I, 1, 4, 9, 10, 16, 21 of the California Constitution contains safeguards against infringement of the rights at which petitioners claim the loyalty investigation strikes.

conservative

public_entity

judicial_power

2008-030-01

United States Supreme Court BARTLETT, EXECUTIVE DIRECTOR OF NORTH CAROLINA STATE BOARD OF ELECTIONS, ET AL. v. STRICKLAND ET AL.(2009) No. 07-689 Argued: October 14, 2008Decided: March 9, 2009 Despite the North Carolina Constitution's "Whole County Provision" prohibiting the General Assembly from dividing counties when drawing its own legislative districts, in 1991 the legislature drew House District 18 to include portions of four counties, including Pender County, for the asserted purpose of satisfying §2 of the Voting Rights Act of 1965. At that time, District 18 was a geographically compact majority-minority district. By the time the district was to be redrawn in 2003, the African-American voting-age population in District 18 had fallen below 50 percent. Rather than redrawing the district to keep Pender County whole, the legislators split portions of it and another county. District 18's African-American voting-age population is now 39.36 percent. Keeping Pender County whole would have resulted in an African-American voting-age population of 35.33 percent. The legislators' rationale was that splitting Pender County gave African-American voters the potential to join with majority voters to elect the minority group's candidate of choice, while leaving Pender County whole would have violated §2 of the Voting Rights Act. Pender County and others filed suit, alleging that the redistricting plan violated the Whole County Provision. The state-official defendants answered that dividing Pender County was required by §2. The trial court first considered whether the defendants had established the three threshold requirements for §2 liability under Thornburg v. Gingles, 478 U.S. 30, 51, only the first of which is relevant here: whether the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district." The court concluded that although African-Americans were not a majority of District 18's voting-age population, the district was a "de facto" majority-minority district because African-Americans could get enough support from crossover majority voters to elect their preferred candidate. The court ultimately determined, based on the totality of the circumstances, that §2 required that Pender County be split, and it sustained District 18's lines on that rationale. The State Supreme Court reversed, holding that a minority group must constitute a numerical majority of the voting-age population in an area before §2 requires the creation of a legislative district to prevent dilution of that group's votes. Because African-Americans did not have such a numerical majority in District 18, the court ordered the legislature to redraw the district. Held:The judgment is affirmed. 361 N.C. 491, 649 S.E. 2d 364, affirmed. Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded that §2 does not require state officials to draw election-district lines to allow a racial minority that would make up less than 50 percent of the voting-age population in the redrawn district to join with crossover voters to elect the minority's candidate of choice. Pp.5-21. 1.As amended in 1982, §2 provides that a violation "is established if, based on the totality of circumstances, it is shown that the [election] processes ... in the State or political subdivision are not equally open to participation by members of a [protected] class [who] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. §1973(b). Construing the amended §2 in Gingles, supra, at 50-51, the Court identified three "necessary preconditions" for a claim that the use of multimember districts constituted actionable vote dilution. It later held that those requirements apply equally in §2 cases involving single-member districts. Growe v. Emison, 507 U.S. 25, 40-41. Only when a party has established the requirements does a court proceed to analyze whether a §2 violation has occurred based on the totality of the circumstances. See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1013. Pp.5-7. 2.Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met. Pp.7-21. (a)A party asserting §2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. The Court has held both that §2 can require the creation of a "majority-minority" district, in which a minority group composes a numerical, working majority of the voting-age population, see, e.g., Voinovich v. Quilter, 507 U.S. 146, 154-155, and that §2 does not require the creation of an "influence" district, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected, see League of United Latin American Citizens v. Perry, 548 U.S. 399, ___ (LULAC). This case involves an intermediate, "crossover" district, in which the minority makes up less than a majority of the voting-age population, but is large enough to elect the candidate of its choice with help from majority voters who cross over to support the minority's preferred candidate. Petitioners' theory that such districts satisfy the first Gingles requirement is contrary to §2, which requires a showing that minorities "have less opportunity than other members of the electorate to ... elect representatives of their choice," 42 U.S.C. §1973(b). Because they form only 39 percent of District 18's voting-age population, African-Americans standing alone have no better or worse opportunity to elect a candidate than any other group with the same relative voting strength. Recognizing a §2 claim where minority voters cannot elect their candidate of choice based on their own votes and without assistance from others would grant special protection to their right to form political coalitions that is not authorized by the section. Nor does the reasoning of this Court's cases support petitioners' claims. In Voinovich, for example, the Court stated that the first Gingles requirement "would have to be modified or eliminated" to allow crossover-district claims. 507 U.S., at 158. Indeed, mandatory recognition of such claims would create serious tension with the third Gingles requirement, that the majority votes as a bloc to defeat minority-preferred candidates, see 478 U.S., at 50-51, and would call into question the entire Gingles framework. On the other hand, the Court finds support for the clear line drawn by the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. By contrast, if §2 required crossover districts, determining whether a §2 claim would lie would require courts to make complex political predictions and tie them to race-based assumptions. Heightening these concerns is the fact that because §2 applies nationwide to every jurisdiction required to draw election-district lines under state or local law, crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local elections. Unlike any of the standards proposed to allow crossover claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? Given §2's text, the Court's cases interpreting that provision, and the many difficulties in assessing §2 claims without the restraint and guidance provided by the majority-minority rule, all of the federal courts of appeals that have interpreted the first Gingles factor have required a majority-minority standard. The Court declines to depart from that uniform interpretation, which has stood for more than 20 years. Because this case does not involve allegations of intentional and wrongful conduct, the Court need not consider whether intentional discrimination affects the Gingles analysis. Pp.7-15. (b)Arguing for a less restrictive interpretation, petitioners point to §2's guarantee that political processes be "equally open to participation" to protect minority voters' "opportunity ... to elect representatives of their choice," 42 U.S.C. §1973(b), and assert that such "opportunit[ies]" occur in crossover districts and require protection. But petitioners emphasize the word "opportunity" at the expense of the word "equally." The statute does not protect any possible opportunity through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts have the same opportunity to elect their candidate as any other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with §2's totality-of-the-circumstances test. See, e.g., Growe, supra, at 40. Any doubt as to whether §2 calls for this rule is resolved by applying the canon of constitutional avoidance to steer clear of serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U.S. 371, 381-382. Such concerns would be raised if §2 were interpreted to require crossover districts throughout the Nation, thereby "unnecessarily infus[ing] race into virtually every redistricting." LULAC, supra, at 446. Pp.16-18. (c)This holding does not consider the permissibility of crossover districts as a matter of legislative choice or discretion. Section 2 allows States to choose their own method of complying with the Voting Rights Act, which may include drawing crossover districts. See Georgia v. Ashcroft, 539 U.S. 461, 480-482. Moreover, the holding should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See, e.g., Miller v. Johnson, 515 U.S. 900. Such districts are only required if all three Gingles factors are met and if §2 applies based on the totality of the circumstances. A claim similar to petitioners' assertion that the majority-minority rule is inconsistent with §5 was rejected in LULAC, supra, at ___. Pp.19-21. Justice Thomas, joined by Justice Scalia, adhered to his view in Holder v. Hall, 512 U.S. 874, 891, 893 (opinion concurring in judgment), that the text of §2 of the Voting Rights Act of 1965 does not authorize any vote dilution claim, regardless of the size of the minority population in a given district. The Thornburg v. Gingles, 478 U.S. 30, framework for analyzing such claims has no basis in §2's text and "has produced ... a disastrous misadventure in judicial policymaking," Holder, supra, at 893. P.1. Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., and Breyer, J., filed dissenting opinions. GARY BARTLETT, EXECUTIVE DIRECTOR OF THENORTH CAROLINA STATE BOARD OF ELECTIONS,etal., PETITIONERS v. DWIGHTSTRICKLAND etal. on writ of certiorari to the supreme court of north carolina [March 9, 2009] Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Alito join. This case requires us to interpret §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. §1973 (2000 ed.). The question is whether the statute can be invoked to require state officials to draw election-district lines to allow a racial minority to join with other voters to elect the minority's candidate of choice, even where the racial minority is less than 50 percent of the voting-age population in the district to be drawn. To use election-law terminology: In a district that is not a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, can §2 require the district to be drawn to accommodate this potential? I The case arises in a somewhat unusual posture. State authorities who created a district now invoke the Voting Rights Act as a defense. They argue that §2 required them to draw the district in question in a particular way, despite state laws to the contrary. The state laws are provisions of the North Carolina Constitution that prohibit the General Assembly from dividing counties when drawing legislative districts for the State House and Senate. Art. II, §§3, 5. We will adopt the term used by the state courts and refer to both sections of the state constitution as the Whole County Provision. See Pender County v. Bartlett, 361 N.C. 491, 493, 649 S.E. 2d 364, 366 (2007) (case below). It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal law--for instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution. See Reynolds v. Sims, 377 U.S. 533 (1964). Here the question is whether §2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision. That, in turn, depends on how the statute is interpreted. We begin with the election district. The North Carolina House of Representatives is the larger of the two chambers in the State's General Assembly. District 18 of that body lies in the southeastern part of North Carolina. Starting in 1991, the General Assembly drew District 18 to include portions of four counties, including Pender County, in order to create a district with a majority African-American voting-age population and to satisfy the Voting Rights Act. Following the 2000 census, the North Carolina Supreme Court, to comply with the Whole County Provision, rejected the General Assembly's first two statewide redistricting plans. See Stephenson v. Bartlett, 355 N.C. 354, 375, 562 S.E.2d 377, 392, stay denied, 535 U.S. 1301 (2002) (Rehnquist, C.J., in chambers); Stephenson v. Bartlett, 357 N.C. 301, 314, 582 S.E.2d 247, 254 (2003). District 18 in its present form emerged from the General Assembly's third redistricting attempt, in 2003. By that time the African-American voting-age population had fallen below 50 percent in the district as then drawn, and the General Assembly no longer could draw a geographically compact majority-minority district. Rather than draw District 18 to keep Pender County whole, however, the General Assembly drew it by splitting portions of Pender and New Hanover counties. District 18 has an African-American voting-age population of 39.36 percent. App. 139. Had it left Pender County whole, the General Assembly could have drawn District 18 with an African-American voting-age population of 35.33 percent. Id., at 73. The General Assembly's reason for splitting Pender County was to give African-American voters the potential to join with majority voters to elect the minority group's candidate of its choice. Ibid. Failure to do so, state officials now submit, would have diluted the minority group's voting strength in violation of §2. In May 2004, Pender County and the five members of its Board of Commissioners filed the instant suit in North Carolina state court against the Governor of North Carolina, the Director of the State Board of Elections, and other state officials. The plaintiffs alleged that the 2003 plan violated the Whole County Provision by splitting Pender County into two House districts. App. 5-14. The state-official defendants answered that dividing Pender County was required by §2. Id., at 25. As the trial court recognized, the procedural posture of this case differs from most §2 cases. Here the defendants raise §2 as a defense. As a result, the trial court stated, they are "in the unusual position" of bearing the burden of proving that a §2 violation would have occurred absent splitting Pender County to draw District 18. App. to Pet. for Cert. 90a. The trial court first considered whether the defendant state officials had established the three threshold requirements for §2 liability under Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)--namely, (1) that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) that the minority group is "politically cohesive," and (3) "that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." As to the first Gingles requirement, the trial court concluded that, although African-Americans were not a majority of the voting-age population in District 18, the district was a "de facto" majority-minority district because African-Americans could get enough support from crossover majority voters to elect the African-Americans' preferred candidate. The court ruled that African-Americans in District 18 were politically cohesive, thus satisfying the second requirement. And later, the plaintiffs stipulated that the third Gingles requirement was met. App. to Pet. for Cert. at 102a-103a, 130a. The court then determined, based on the totality of the circumstances, that §2 required the General Assembly to split Pender County. The court sustained the lines for District 18 on that rationale. Id., at 116a-118a. Three of the Pender County Commissioners appealed the trial court's ruling that the defendants had established the first Gingles requirement. The Supreme Court of North Carolina reversed. It held that a "minority group must constitute a numerical majority of the voting population in the area under consideration before Section 2 ... requires the creation of a legislative district to prevent dilution of the votes of that minority group." 361 N.C., at 502, 649 S.E. 2d, at 371. On that premise the State Supreme Court determined District 18 was not mandated by §2 because African-Americans do not "constitute a numerical majority of citizens of voting age." Id., at 507, 649 S.E. 2d, at 374. It ordered the General Assembly to redraw District 18. Id., at 510, 649 S.E. 2d, at 376. We granted certiorari, 552 U.S. ___ (2008), and now affirm. II Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote. Though the Act as a whole was the subject of debate and controversy, §2 prompted little criticism. The likely explanation for its general acceptance is that, as first enacted, §2 tracked, in part, the text of the Fifteenth Amendment. It prohibited practices "imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." 79 Stat. 437; cf. U.S. Const., Amdt. 15 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"); see also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). In Mobile v. Bolden, 446 U.S. 55, 60-61 (1980), this Court held that §2, as it then read, "no more than elaborates upon ... the Fifteenth Amendment" and was "intended to have an effect no different from that of the Fifteenth Amendment itself." In 1982, after the Mobile ruling, Congress amended §2, giving the statute its current form. The original Act had employed an intent requirement, prohibiting only those practices "imposed or applied ... to deny or abridge" the right to vote. 79 Stat. 437. The amended version of §2 requires consideration of effects, as it prohibits practices "imposed or applied ... in a manner which results in a denial or abridgment" of the right to vote. 96 Stat. 134, 42 U.S.C. §1973(a) (2000 ed.). The 1982 amendments also added a subsection, §2(b), providing a test for determining whether a §2 violation has occurred. The relevant text of the statute now states: "(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group], as provided in subsection (b) of this section. "(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. §1973. This Court first construed the amended version of §2 in Thornburg v. Gingles, 478 U.S. 30 (1986). In Gingles, the plaintiffs were African-American residents of North Carolina who alleged that multimember districts diluted minority voting strength by submerging black voters into the white majority, denying them an opportunity to elect a candidate of their choice. The Court identified three "necessary preconditions" for a claim that the use of multimember districts constituted actionable vote dilution under §2: (1) The minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district," (2) the minority group must be "politically cohesive," and (3) the majority must vote "sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Id., at 50-51. The Court later held that the three Gingles requirements apply equally in §2 cases involving single-member districts, such as a claim alleging vote dilution because a geographically compact minority group has been split between two or more single-member districts. Growe v. Emison, 507 U.S. 25, 40-41 (1993). In a §2 case, only when a party has established the Gingles requirements does a court proceed to analyze whether a violation has occurred based on the totality of the circumstances. Gingles, supra, at 79; see also Johnson v. DeGrandy, 512 U.S. 997, 1013 (1994). III A This case turns on whether the first Gingles requirement can be satisfied when the minority group makes up less than 50 percent of the voting-age population in the potential election district. The parties agree on all other parts of the Gingles analysis, so the dispositive question is: What size minority group is sufficient to satisfy the first Gingles requirement? At the outset the answer might not appear difficult to reach, for the Gingles Court said the minority group must "demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." 478 U.S., at 50. This would seem to end the matter, as it indicates the minority group must demonstrate it can constitute "a majority." But in Gingles and again in Growe the Court reserved what it considered to be a separate question--whether, "when a plaintiff alleges that a voting practice or procedure impairs a minority's ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice." Growe, supra, at 41, n.5; see also Gingles, supra, at 46-47, n.12. The Court has since applied the Gingles requirements in §2 cases but has declined to decide the minimum size minority group necessary to satisfy the first requirement. See Voinovich v. Quilter, 507 U.S. 146, 154 (1993); DeGrandy, supra, at 1009; League of United Latin American Citizens v. Perry, 548 U.S. 399, 443 (2006) (opinion of Kennedy, J.) (LULAC). We must consider the minimum-size question in this case. It is appropriate to review the terminology often used to describe various features of election districts in relation to the requirements of the Voting Rights Act. In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, §2 can require the creation of these districts. See, e.g., Voinovich, supra, at 154 ("Placing black voters in a district in which they constitute a sizeable and therefore 'safe' majority ensures that they are able to elect their candidate of choice"); but see Holder v. Hall, 512 U.S. 874, 922-923 (1994) (Thomas, J., concurring in judgment). At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that §2 does not require the creation of influence districts. LULAC, supra, at 445 (opinion of Kennedy,J.). The present case involves an intermediate type of district--a so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate. 361 N.C., at 501-502, 649 S.E. 2d, at 371 (case below). This Court has referred sometimes to crossover districts as "coalitional" districts, in recognition of the necessary coalition between minority and crossover majority voters. See Georgia v. Ashcroft, 539 U.S. 461, 483 (2003); see also Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L.Rev. 1517, 1539 (2002) (hereinafter Pildes). But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. See, e.g., Nixon v. Kent County, 76 F.3d 1381, 1393 (CA6 1996) (en banc). We do not address that type of coalition district here. The petitioners in the present case (the state officials who were the defendants in the trial court) argue that §2 requires a crossover district, in which minority voters might be able to persuade some members of the majority to cross over and join with them. Petitioners argue that although crossover districts do not include a numerical majority of minority voters, they still satisfy the first Gingles requirement because they are "effective minority districts." Under petitioners' theory keeping Pender County whole would have violated §2 by cracking the potential crossover district that they drew as District 18. See Gingles, 478 U.S., at 46, n.11 (vote dilution "may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters"). So, petitioners contend, §2 required them to override state law and split Pender County, drawing District 18 with an African-American voting-age population of 39.36 percent rather than keeping Pender County whole and leaving District 18 with an African-American voting-age population of 35.33 percent. We reject that claim. First, we conclude, the petitioners' theory is contrary to the mandate of §2. The statute requires a showing that minorities "have less opportunity than other members of the electorate to ... elect representatives of their choice." 42 U.S.C. §1973(b) (2000 ed.). But because they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength. That is, African-Americans in District 18 have the opportunity to join other voters--including other racial minorities, or whites, or both--to reach a majority and elect their preferred candidate. They cannot, however, elect that candidate based on their own votes and without assistance from others. Recognizing a §2 claim in this circumstance would grant minority voters "a right to preserve their strength for the purposes of forging an advantageous political alliance." Hall v. Virginia, 385 F.3d 421, 431 (CA4 2004); see also Voinovich, supra, at 154 (minorities in crossover districts "could not dictate electoral outcomes independently"). Nothing in §2 grants special protection to a minority group's right to form political coalitions. "[M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground." DeGrandy, 512 U.S., at 1020. Although the Court has reserved the question we confront today and has cautioned that the Gingles requirements "cannot be applied mechanically," Voinovich, supra, at 158, the reasoning of our cases does not support petitioners' claims. Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters. In setting out the first requirement for §2 claims, the Gingles Court explained that "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." 478 U.S., at 50, n.17. The Growe Court stated that the first Gingles requirement is "needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district." 507 U.S., at 40. Without such a showing, "there neither has been a wrong nor can be a remedy." Id., at 41. There is a difference between a racial minority group's "own choice" and the choice made by a coalition. In Voinovich, the Court stated that the first Gingles requirement "would have to be modified or eliminated" to allow crossover-district claims. 507 U.S., at 158. Only once, in dicta, has this Court framed the first Gingles requirement as anything other than a majority-minority rule. See DeGrandy, 512 U.S., at 1008 (requiring "a sufficiently large minority population to elect candidates of its choice"). And in the same case, the Court rejected the proposition, inherent in petitioners' claim here, that §2 entitles minority groups to the maximum possible voting strength: "[R]eading §2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast." Id., at 1016-1017. Allowing crossover-district claims would require us to revise and reformulate the Gingles threshold inquiry that has been the baseline of our §2 jurisprudence. Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third Gingles requirement that the majority votes as a bloc to defeat minority-preferred candidates. It is difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred candidate. (We are skeptical that the bloc-voting test could be satisfied here, for example, where minority voters in District 18 cannot elect their candidate of choice without support from almost 20 percent of white voters. We do not confront that issue, however, because for some reason respondents conceded the third Gingles requirement in state court.) As the Gingles Court explained, "in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters." 478 U.S., at 49, n.15. Were the Court to adopt petitioners' theory and dispense with the majority-minority requirement, the ruling would call in question the Gingles framework the Court has applied under §2. See LULAC, 548 U.S., at 490, n.8. (Souter, J., concurring in part and dissenting in part) ("All aspects of our established analysis for majority-minority districts in Gingles and its progeny may have to be rethought in analyzing ostensible coalition districts"); cf. Metts v. Murphy, 363 F.3d 8, 12 (CA1 2004) (en banc) (per curiam) (allowing influence-district claim to survive motion to dismiss but noting "there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles"). We find support for the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. The rule draws clear lines for courts and legislatures alike. The same cannot be said of a less exacting standard that would mandate crossover districts under §2. Determining whether a §2 claim would lie--i.e., determining whether potential districts could function as crossover districts--would place courts in the untenable position of predicting many political variables and tying them to race-based assumptions. The judiciary would be directed to make predictions or adopt premises that even experienced polling analysts and political experts could not assess with certainty, particularly over the long term. For example, courts would be required to pursue these inquiries: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of §2. Though courts are capable of making refined and exacting factual inquiries, they "are inherently ill-equipped" to "make decisions based on highly political judgments" of the sort that crossover-district claims would require. Holder, 512 U.S., at 894 (Thomas, J., concurring in judgment). There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in §2 raises serious constitutional questions. See infra, at 16-18. Heightening these concerns even further is the fact that §2 applies nationwide to every jurisdiction that must draw lines for election districts required by state or local law. Crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates. Under petitioners' view courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority. The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions. And predictions would be speculative at best given that, especially in the context of local elections, voters' personal affiliations with candidates and views on particular issues can play a large role. Unlike any of the standards proposed to allow crossover-district claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with §2. See LULAC, supra, at 485 (opinion of Souter, J.) (recognizing need for "clear-edged rule"). Where an election district could be drawn in which minority voters form a majority but such a district is not drawn, or where a majority-minority district is cracked by assigning some voters elsewhere, then--assuming the other Gingles factors are also satisfied--denial of the opportunity to elect a candidate of choice is a present and discernible wrong that is not subject to the high degree of speculation and prediction attendant upon the analysis of crossover claims. Not an arbitrary invention, the majority-minority rule has its foundation in principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district. Given the text of §2, our cases interpreting that provision, and the many difficulties in assessing §2 claims without the restraint and guidance provided by the majority-minority rule, no federal court of appeals has held that §2 requires creation of coalition districts. Instead, all to consider the question have interpreted the first Gingles factor to require a majority-minority standard. See Hall, 385 F.3d, at 427-430 (CA4 2004), cert. denied, 544 U.S. 961 (2005); Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848, 852-853 (CA5 1999), cert. denied, 528 U.S. 1114 (2000); Cousin v. Sundquist, 145 F.3d 818, 828-829 (CA6 1998), cert. denied, 525 U.S. 1138 (1999); Sanchez v. Colorado, 97 F.3d 1303, 1311-1312 (CA10 1996), cert. denied, 520 U.S. 1229 (1997); Romero v. Pomona, 883 F.2d 1418, 1424, n.7, 1425-1426 (CA9 1989), overruled on other grounds, 914 F.2d 1136, 1141 (CA9 1990); McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (CA7 1988), cert. denied, 490 U.S. 1031 (1989). Cf. Metts, 363 F.3d, at 11 (expressing unwillingness "at the complaint stage to foreclose the possibility" of influence-district claims). We decline to depart from the uniform interpretation of §2 that has guided federal courts and state and local officials for more than 20 years. To be sure, the Gingles requirements "cannot be applied mechanically and without regard to the nature of the claim." Voinovich, 507 U.S., at 158. It remains the rule, however, that a party asserting §2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. No one contends that the African-American voting-age population in District 18 exceeds that threshold. Nor does this case involve allegations of intentional and wrongful conduct. We therefore need not consider whether intentional discrimination affects the Gingles analysis. Cf. Brief for United States as Amicus Curiae 14 (evidence of discriminatory intent "tends to suggest that the jurisdiction is not providing an equal opportunity to minority voters to elect the representative of their choice, and it is therefore unnecessary to consider the majority-minority requirement before proceeding to the ultimate totality-of-the-circumstances analysis"); see also Garza v. County of Los Angeles, 918 F.2d 763, 771 (CA9 1990). Our holding does not apply to cases in which there is intentional discrimination against a racial minority. B In arguing for a less restrictive interpretation of the first Gingles requirement petitioners point to the text of §2 and its guarantee that political processes be "equally open to participation" to protect minority voters' "opportunity ... to elect representatives of their choice." 42 U.S.C. §1973(b) (2000 ed.). An "opportunity," petitioners argue, occurs in crossover districts as well as majority-minority districts; and these extended opportunities, they say, require §2 protection. But petitioners put emphasis on the word "opportunity" at the expense of the word "equally." The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts cannot form a voting majority without crossover voters. In those districts minority voters have the same opportunity to elect their candidate as any other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with §2's totality-of-the-circumstances test. The Court in DeGrandy confirmed "the error of treating the three Gingles conditions as exhausting the enquiry required by §2." 512 U.S., at 1013. Instead the Gingles requirements are preconditions, consistent with the text and purpose of §2, to help courts determine which claims could meet the totality-of-the-circumstances standard for a §2 violation. See Growe, 507 U.S., at 40 (describing the "Gingles threshold factors"). To the extent there is any doubt whether §2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U.S. 371, 381-382 (2005) (canon of constitutional avoidance is "a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." Richmond v. J. A. Croson Co., 488 U.S. 469, 518, 519 (1989) (Kennedy, J., concurring in part and concurring in judgment). "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters--a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Shaw v. Reno, 509 U.S. 630, 657 (1993). If §2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." LULAC, 548 U.S., at 446 (opinion of Kennedy, J.); see also Ashcroft, 539 U.S., at 491 (Kennedy, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." Miller v. Johnson, 515 U.S. 900, 916 (1995). On petitioners' view of the case courts and legislatures would need to scrutinize every factor that enters into districting to gauge its effect on crossover voting. Injecting this racial measure into the nationwide districting process would be of particular concern with respect to consideration of party registration or party influence. The easiest and most likely alliance for a group of minority voters is one with a political party, and some have suggested using minority voters' strength within a particular party as the proper yardstick under the first Gingles requirement. See, e.g., LULAC, supra, at 485-486 (opinion of Souter, J.) (requiring only "that minority voters ... constitute a majority of those voting in the primary of ... the party tending to win in the general election"). That approach would replace an objective, administrable rule with a difficult "judicial inquiry into party rules and local politics" to determine whether a minority group truly "controls" the dominant party's primary process. McLoughlin, Gingles in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims, 80 N.Y.U. L.Rev. 312, 349 (2005). More troubling still is the inquiry's fusion of race and party affiliation as a determinant when partisan considerations themselves may be suspect in the drawing of district lines. See Vieth v. Jubelirer, 541 U.S. 267, 317 (2004) (Stevens, J., dissenting); id., at 316 (Kennedy, J., concurring in judgment); see also Pildes 1565 (crossover-district requirement would essentially result in political party "entitlement to ... a certain number of seats"). Disregarding the majority-minority rule and relying on a combination of race and party to presume an effective majority would involve the law and courts in a perilous enterprise. It would rest on judicial predictions, as a matter of law, that race and party would hold together as an effective majority over time--at least for the decennial apportionment cycles and likely beyond. And thus would the relationship between race and party further distort and frustrate the search for neutral factors and principled rationales for districting. Petitioners' approach would reverse the canon of avoidance. It invites the divisive constitutional questions that are both unnecessary and contrary to the purposes of our precedents under the Voting Rights Act. Given the consequences of extending racial considerations even further into the districting process, we must not interpret §2 to require crossover districts. C Our holding that §2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of §5 of the Voting Rights Act, "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts." Ashcroft, 539 U.S., at 482. Much like §5, §2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See id., at 480-483. When we address the mandate of §2, however, we must note it is not concerned with maximizing minority voting strength, DeGrandy, 512 U.S., at 1022; and, as a statutory matter, §2 does not mandate creating or preserving crossover districts. Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See Miller v. Johnson, supra; Shaw v. Reno, supra. States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three Gingles factors are met and if §2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third Gingles precondition--bloc voting by majority voters. See supra, at 11. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 ("Districts could still be designed in such places that encouraged coalitions across racial lines, but these districts would result from legislative choice, not ... obligation"). States can--and in proper cases should--defend against alleged §2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third Gingles factor or of equal political opportunity under the §2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. See Reno v. Bossier Parish School Bd., 520 U.S. 471, 481-482 (1997); Brief for United States as Amicus Curiae 13-14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that §2 can require the creation of crossover districts in the first instance. Petitioners claim the majority-minority rule is inconsistent with §5, but we rejected a similar argument in LULAC, 548 U.S., at 446 (opinion of Kennedy,J.). The inquiries under §§2 and 5 are different. Section 2 concerns minority groups' opportunity "to elect representatives of their choice," 42 U.S.C. §1973(b) (2000 ed.), while the more stringent §5 asks whether a change has the purpose or effect of "denying or abridging the right to vote," §1973c. See LULAC, supra, at 446; Bossier Parish, supra, at 476-480. In LULAC, we held that although the presence of influence districts is relevant for the §5 retrogression analysis, "the lack of such districts cannot establish a §2 violation." 548 U.S., at 446 (opinion of Kennedy,J.); see also Ashcroft, 539 U.S., at 482-483. The same analysis applies for crossover districts: Section 5 "leaves room" for States to employ crossover districts, id., at 483, but §2 does not require them. IV Some commentators suggest that racially polarized voting is waning--as evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L.Rev. 2208, 2209 (2003); see also id., at 2216-2222; Pildes 1529-1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L.J. 1209 (1999). Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and §2 must be interpreted to ensure that continued progress. It would be an irony, however, if §2 were interpreted to entrench racial differences by expanding a "statute meant to hasten the waning of racism in American politics." DeGrandy, supra, at 1020. Crossover districts are, by definition, the result of white voters joining forces with minority voters to elect their preferred candidate. The Voting Rights Act was passed to foster this cooperation. We decline now to expand the reaches of §2 to require, by force of law, the voluntary cooperation our society has achieved. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met. The judgment of the Supreme Court of North Carolina is affirmed. It is so ordered. GARY BARTLETT, EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS, etal., PETITIONERS v. DWIGHT STRICKLAND etal. on writ of certiorari to the supreme court of north carolina [March 9, 2009] Justice Thomas, with whom Justice Scalia joins, concurring in the judgment. I continue to adhere to the views expressed in my opinion in Holder v. Hall, 512 U.S. 874, 891 (1994) (opinion concurring in judgment). The text of §2 of the Voting Rights Act of 1965 does not authorize any vote dilution claim, regardless of the size of the minority population in a given district. See 42 U.S.C. §1973(a) (2000 ed.) (permitting only a challenge to a "voting qualification or prerequisite to voting or standard, practice, or procedure"); see also Holder, supra, at 893 (stating that the terms "'standard, practice, or procedure'" "reach only state enactments that limit citizens' access to the ballot"). I continue to disagree, therefore, with the framework set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), for analyzing vote dilution claims because it has no basis in the text of §2. I would not evaluate any Voting Rights Act claim under a test that "has produced such a disastrous misadventure in judicial policymaking." Holder, supra, at 893. For these reasons, I concur only in the judgment. GARY BARTLETT, EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS, etal., PETITIONERS v. DWIGHT STRICKLAND etal. on writ of certiorari to the supreme court of north carolina [March 9, 2009] Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting. The question in this case is whether a minority with under 50% of the voting population of a proposed voting district can ever qualify under §2 of the Voting Rights Act of 1965 (VRA) as residents of a putative district whose minority voters would have an opportunity "to elect representatives of their choice." 42 U.S.C. §1973(b) (2000 ed.). If the answer is no, minority voters in such a district will have no right to claim relief under §2 from a statewide districting scheme that dilutes minority voting rights. I would hold that the answer in law as well as in fact is sometimes yes: a district may be a minority-opportunity district so long as a cohesive minority population is large enough to elect its chosen candidate when combined with a reliable number of crossover voters from an otherwise polarized majority. In the plurality's view, only a district with a minority population making up 50% or more of the citizen voting age population (CVAP) can provide a remedy to minority voters lacking an opportunity "to elect representatives of their choice." This is incorrect as a factual matter if the statutory phrase is given its natural meaning; minority voters in districts with minority populations under 50% routinely "elect representatives of their choice." The effects of the plurality's unwillingness to face this fact are disturbing by any measure and flatly at odds with the obvious purpose of the Act. If districts with minority populations under 50% can never count as minority-opportunity districts to remedy a violation of the States' obligation to provide equal electoral opportunity under §2, States will be required under the plurality's rule to pack black voters into additional majority-minority districts, contracting the number of districts where racial minorities are having success in transcending racial divisions in securing their preferred representation. The object of the Voting Rights Act will now be promoting racial blocs, and the role of race in districting decisions as a proxy for political identification will be heightened by any measure. I Recalling the basic premises of vote-dilution claims under §2 will show just how far astray the plurality has gone. Section 2 of the VRA prohibits districting practices that "resul[t] in a denial or abridgement of the right of any citizen of the United States to vote on account of race." 42 U.S.C. §1973(a). A denial or abridgment is established if, "based on the totality of circumstances," it is shown that members of a racial minority "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." §1973(b). Since §2 was amended in 1982, 96 Stat. 134, we have read it to prohibit practices that result in "vote dilution," see Thornburg v. Gingles, 478 U.S. 30 (1986), understood as distributing politically cohesive minority voters through voting districts in ways that reduce their potential strength. See id., at 47-48. There are two classic patterns. Where voting is racially polarized, a districting plan can systemically discount the minority vote either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters" or from "the concentration of blacks into districts where they constitute an excessive majority," so as to eliminate their influence in neighboring districts. Id., at 46, n. 11. Treating dilution as a remediable harm recognizes that §2 protects not merely the right of minority voters to put ballots in a box, but to claim a fair number of districts in which their votes can be effective. See id., at 47. Three points follow. First, to speak of a fair chance to get the representation desired, there must be an identifiable baseline for measuring a group's voting strength. Id., at 88 (O'Connor, J., concurring in judgment) ("In order to evaluate a claim that a particular multimember district or single-member district has diluted the minority group's voting strength to a degree that violates §2, ... it is ... necessary to construct a measure of 'undiluted' minority voting strength"). Several baselines can be imagined; one could, for example, compare a minority's voting strength under a particular districting plan with the maximum strength possible under any alternative.1 Not surprisingly, we have conclusively rejected this approach; the VRA was passed to guarantee minority voters a fair game, not a killing. See Johnson v. De Grandy, 512 U.S. 997, 1016-1017 (1994). We have held that the better baseline for measuring opportunity to elect under §2, although not dispositive, is the minority's rough proportion of the relevant population. Id., at 1013-1023. Thus, in assessing §2 claims under a totality of the circumstances, including the facts of history and geography, the starting point is a comparison of the number of districts where minority voters can elect their chosen candidate with the group's population percentage. Ibid; see also League of United Latin American Citizens v. Perry, 548 U.S. 399, 436 (2006) (LULAC) ("We proceed now to the totality of the circumstances, and first to the proportionality inquiry, comparing the percentage of total districts that are [minority] opportunity districts with the [minority] share of the citizen voting-age population").2 Second, the significance of proportionality means that a §2 claim must be assessed by looking at the overall effect of a multidistrict plan. A State with one congressional seat cannot dilute a minority's congressional vote, and only the systemic submergence of minority votes where a number of single-member districts could be drawn can be treated as harm under §2. So a §2 complaint must look to an entire districting plan (normally, statewide), alleging that the challenged plan creates an insufficient number of minority-opportunity districts in the territory as a whole. See id., at 436-437. Third, while a §2 violation ultimately results from the dilutive effect of a districting plan as a whole, a §2 plaintiff must also be able to place himself in a reasonably compact district that could have been drawn to improve upon the plan actually selected. See, e.g., De Grandy, supra, at 1001-1002. That is, a plaintiff must show both an overall deficiency and a personal injury open to redress. Our first essay at understanding these features of statutory vote dilution was Thornburg v. Gingles, which asked whether a multimember district plan for choosing representatives by at-large voting deprived minority voters of an equal opportunity to elect their preferred candidates. In answering, we set three now-familiar conditions that a §2 claim must meet at the threshold before a court will analyze it under the totality of circumstances: "First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." 478 U.S., at 50-51. As we have emphasized over and over, the Gingles conditions do not state the ultimate standard under §2, nor could they, since the totality of the circumstances standard has been set explicitly by Congress. See LULAC, supra, at 425-426; De Grandy, supra, at 1011. Instead, each condition serves as a gatekeeper, ensuring that a plaintiff who proceeds to plenary review has a real chance to show a redressable violation of the ultimate §2 standard. The third condition, majority racial bloc voting, is necessary to establish the premise of vote-dilution claims: that the minority as a whole is placed at a disadvantage owing to race, not the happenstance of independent politics. Gingles, 478 U.S., at 51. The second, minority cohesion, is there to show that minority voters will vote together to elect a distinct representative of choice. Ibid. And the first, a large and geographically compact minority population, is the condition for demonstrating that a dilutive plan injures the §2 plaintiffs by failing to draw an available remedial district that would give them a chance to elect their chosen candidate. Growe v. Emison, 507 U.S. 25, 40-41 (1993); Gingles, supra, at 50. II Though this case arose under the Constitution of North Carolina, the dispositive issue is one of federal statutory law: whether a district with a minority population under 50%, but large enough to elect its chosen candidate with the help of majority voters disposed to support the minority favorite, can ever count as a district where minority voters have the opportunity "to elect representatives of their choice" for purposes of §2. I think it clear from the nature of a vote-dilution claim and the text of §2 that the answer must be yes. There is nothing in the statutory text to suggest that Congress meant to protect minority opportunity to elect solely by the creation of majority-minority districts. See Voinovich v. Quilter, 507 U.S. 146, 155 (1993) ("[Section 2] says nothing about majority-minority districts"). On the contrary, §2 "focuses exclusively on the consequences of apportionment," ibid., as Congress made clear when it explicitly prescribed the ultimate functional approach: a totality of the circumstances test. See 42 U.S.C. §1973(b) ("A violation ... is established if, based on the totality of circumstances, it is shown ..."). And a functional analysis leaves no doubt that crossover districts vindicate the interest expressly protected by §2: the opportunity to elect a desired representative. It has been apparent from the moment the Court first took up §2 that no reason exists in the statute to treat a crossover district as a less legitimate remedy for dilution than a majority-minority one (let alone to rule it out). See Gingles, supra, at 90, n.1 (O'Connor, J., concurring in judgment) ("[I]f a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably ... enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice"); see also Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L.Rev. 1517, 1553 (2002) (hereinafter Pildes) ("What should be so magical, then, about whether there are enough black voters to become a formal majority so that a conventional 'safe' district can be created? If a safe and a coalition district have the same probability of electing a black candidate, are they not functionally identical, by definition, with respect to electing such candidates?"). As these earlier comments as much as say, whether a district with a minority population under 50% of CVAP may redress a violation of §2 is a question of fact with an obvious answer: of course minority voters constituting less than 50% of the voting population can have an opportunity to elect the candidates of their choice, as amply shown by empirical studies confirming that such minority groups regularly elect their preferred candidates with the help of modest crossover by members of the majority. See, e.g., id., at 1531-1534, 1538. The North Carolina Supreme Court for example, determined that voting districts with a black voting age population of as little as 38.37% have an opportunity to elect black candidates, Pender Cty. v. Bartlett, 361 N.C. 491, 494-495, 649 S.E. 2d 364, 366-367 (2007), a factual finding that has gone unchallenged and is well supported by electoral results in North Carolina. Of the nine House districts in which blacks make up more than 50% of the voting age population (VAP), all but two elected a black representative in the 2004 election. See App. 109. Of the 12 additional House districts in which blacks are over 39% of the VAP, all but one elected a black representative in the 2004 election. Ibid. It would surely surprise legislators in North Carolina to suggest that black voters in these 12 districts cannot possibly have an opportunity to "elect [the] representatives of their choice." It is of course true that the threshold population sufficient to provide minority voters with an opportunity to elect their candidates of choice is elastic, and the proportions will likely shift in the future, as they have in the past. See Pildes 1527-1532 (explaining that blacks in the 1980s required well over 50% of the population in a district to elect the candidates of their choice, but that this number has gradually fallen to well below 50%); id., at 1527, n.26 (stating that some courts went so far as to refer to 65% "as a 'rule of thumb' for the black population required to constitute a safe district"). That is, racial polarization has declined, and if it continues downward the first Gingles condition will get easier to satisfy. But this is no reason to create an arbitrary threshold; the functional approach will continue to allow dismissal of claims for districts with minority populations too small to demonstrate an ability to elect, and with "crossovers" too numerous to allow an inference of vote dilution in the first place. No one, for example, would argue based on the record of experience in this case that a district with a 25% black population would meet the first Gingles condition. And the third Gingles requirement, majority-bloc voting, may well provide an analytical limit to claims based on crossover districts. See LULAC, 548 U.S., at 490, n. 8 (Souter, J., concurring in part and dissenting in part) (noting the interrelationship of the first and third Gingles factors); see also post, at 1-5 (Breyer, J., dissenting) (looking to the third Gingles condition to suggest a mathematical limit to the minority population necessary for a cognizable crossover district). But whatever this limit may be, we have no need to set it here, since the respondent state officials have stipulated to majority-bloc voting, App. to Pet. for Cert. 130a. In sum, §2 addresses voting realities, and for practical purposes a 39%-minority district in which we know minorities have the potential to elect their preferred candidate is every bit as good as a 50%-minority district. In fact, a crossover district is better. Recognizing crossover districts has the value of giving States greater flexibility to draw districting plans with a fair number of minority-opportunity districts, and this in turn allows for a beneficent reduction in the number of majority-minority districts with their "quintessentially race-conscious calculus," De Grandy, 512 U.S., at 1020, thereby moderating reliance on race as an exclusive determinant in districting decisions, cf. Shaw v. Reno, 509 U.S. 630 (1993). See also Pildes 1547-1548 ("In contrast to the Court's concerns with bizarrely designed safe districts, it is hard to see how coalitional districts could 'convey the message that political identity is, or should be, predominantly racial.'... Coalitional districts would seem to encourage and require a kind of integrative, cross-racial political alliance that might be thought consistent with, even the very ideal of, both the VRA and the U.S. Constitution" (quoting Bush v. Vera, 517 U.S. 952, 980 (1996))). A crossover is thus superior to a majority-minority district precisely because it requires polarized factions to break out of the mold and form the coalitions that discourage racial divisions. III A The plurality's contrary conclusion that §2 does not recognize a crossover claim is based on a fundamental misunderstanding of vote-dilution claims, a mistake epitomized in the following assessment of the crossover district in question: "[B]ecause they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength [in District 18]." Ante, at 9-10. See also ante, at 16 ("[In crossover districts,] minority voters have the same opportunity to elect their candidate as any other political group with the same relative voting strength"). The claim that another political group in a particular district might have the same relative voting strength as the minority if it had the same share of the population takes the form of a tautology: the plurality simply looks to one district and says that a 39% group of blacks is no worse off than a 39% group of whites would be. This statement might be true, or it might not be, and standing alone it demonstrates nothing. Even if the two 39% groups were assumed to be comparable in fact because they will attract sufficient crossover (and so should be credited with satisfying the first Gingles condition), neither of them could prove a §2 violation without looking beyond the 39% district and showing a disproportionately small potential for success in the State's overall configuration of districts. As this Court has explained before, the ultimate question in a §2 case (that is, whether the minority group in question is being denied an equal opportunity to participate and elect) can be answered only by examining the broader pattern of districts to see whether the minority is being denied a roughly proportionate opportunity. See LULAC, 548 U.S., at 436-437. Hence, saying one group's 39% equals another's, even if true in particular districts where facts are known, does not mean that either, both, or neither group could show a §2 violation. The plurality simply fails to grasp that an alleged §2 violation can only be proved or disproved by looking statewide. B The plurality's more specific justifications for its counterfactual position are no more supportable than its 39% tautology. 1 The plurality seems to suggest that our prior cases somehow require its conclusion that a minority population under 50% will never support a §2 remedy, emphasizing that Gingles spoke of a majority and referred to the requirement that minority voters have "'the potential to elect'" their chosen representatives. Ante, at 10 (quoting, Gingles, 478 U.S., at 50, n.17). It is hard to know what to make of this point since the plurality also concedes that we have explicitly and repeatedly reserved decision on today's question. See LULAC, supra, at 443 (plurality opinion); De Grandy, 512 U.S., at 1009; Voinovich, 507 U.S., at 154; Growe, 507 U.S., at 41, n.5; Gingles, supra, at 46-47, n. 12. In fact, in our more recent cases applying §2, Court majorities have formulated the first Gingles prong in a way more consistent with a functional approach. See LULAC, supra, at 430 ("[I]n the context of a challenge to the drawing of district lines, 'the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice'" (quoting De Grandy, supra, at 1008)). These Court majorities get short shrift from today's plurality. In any event, even if we ignored Gingles's reservation of today's question and looked to Gingles's "potential to elect" as if it were statutory text, I fail to see how that phrase dictates that a minority's ability to compete must be singlehanded in order to count under §2. As explained already, a crossover district serves the same interest in obtaining representation as a majority-minority district; the potential of 45% with a 6% crossover promises the same result as 51% with no crossover, and there is nothing in the logic of §2 to allow a distinction between the two types of district. In fact, the plurality's distinction is artificial on its own terms. In the past, when black voter registration and black voter turnout were relatively low, even black voters with 55% of a district's CVAP would have had to rely on crossover voters to elect their candidate of choice. See Pildes 1527-1528. But no one on this Court (and, so far as I am aware, any other court addressing it) ever suggested that reliance on crossover voting in such a district rendered minority success any less significant under §2, or meant that the district failed to satisfy the first Gingles factor. Nor would it be any answer to say that black voters in such a district, assuming unrealistic voter turnout, theoretically had the "potential" to elect their candidate without crossover support; that would be about as relevant as arguing in the abstract that a black CVAP of 45% is potentially successful, on the assumption that black voters could turn out en masse to elect the candidate of their choice without reliance on crossovers if enough majority voters stay home. 2 The plurality is also concerned that recognizing the "potential" of anything under 50% would entail an exponential expansion of special minority districting; the plurality goes so far as to suggest that recognizing crossover districts as possible minority-opportunity districts would inherently "entitl[e] minority groups to the maximum possible voting strength." Ante, at 11. But this conclusion again reflects a confusion of the gatekeeping function of the Gingles conditions with the ultimate test for relief under §2. See ante, at 9-10 ("African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength"). As already explained, supra, at 5-6, the mere fact that all threshold Gingles conditions could be met and a district could be drawn with a minority population sufficiently large to elect the candidate of its choice does not require drawing such a district. This case simply is about the first Gingles condition, not about the number of minority-opportunity districts needed under §2, and accepting Bartlett's position would in no way imply an obligation to maximize districts with minority voter potential. Under any interpretation of the first Gingles factor, the State must draw districts in a way that provides minority voters with a fair number of districts in which they have an opportunity to elect candidates of their choice; the only question here is which districts will count toward that total. 3 The plurality's fear of maximization finds a parallel in the concern that treating crossover districts as minority-opportunity districts would "create serious tension" with the third Gingles prerequisite of majority-bloc voting. Ante, at 11. The plurality finds "[i]t ... difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred candidate." Ibid. It is not difficult to see. If a minority population with 49% of the CVAP can elect the candidate of its choice with crossover by 2% of white voters, the minority "by definition" relies on white support to elect its preferred candidate. But this fact alone would raise no doubt, as a matter of definition or otherwise, that the majority-bloc-voting requirement could be met, since as much as 98% of the majority may have voted against the minority's candidate of choice. As explained above, supra, at 8, the third Gingles condition may well impose an analytical floor to the minority population and a ceiling on the degree of crossover allowed in a crossover district; that is, the concept of majority-bloc voting requires that majority voters tend to stick together in a relatively high degree. The precise standard for determining majority-bloc voting is not at issue in this case, however; to refute the plurality's 50% rule, one need only recognize that racial cohesion of 98% would be bloc voting by any standard.3 4 The plurality argues that qualifying crossover districts as minority-opportunity districts would be less administrable than demanding 50%, forcing courts to engage with the various factual and predictive questions that would come up in determining what percentage of majority voters would provide the voting minority with a chance at electoral success. Ante, at 12-13. But claims based on a State's failure to draw majority-minority districts raise the same issues of judicial judgment; even when the 50% threshold is satisfied, a court will still have to engage in factually messy enquiries about the "potential" such a district may afford, the degree of minority cohesion and majority-bloc voting, and the existence of vote-dilution under a totality of the circumstances. See supra, at 5-6, 8. The plurality's rule, therefore, conserves an uncertain amount of judicial resources, and only at the expense of ignoring a class of §2 claims that this Court has no authority to strike from the statute's coverage. 5 The plurality again misunderstands the nature of §2 in suggesting that its rule does not conflict with what the Court said in Georgia v. Ashcroft, 539 U.S. 461, 480-482 (2003): that crossover districts count as minority-opportunity districts for the purpose of assessing whether minorities have the opportunity "to elect their preferred candidates of choice" under §5 of the VRA, 42 U.S.C.A. §1973c(b) (Supp. 2008). While the plurality is, of course, correct that there are differences between the enquiries under §2 and §5, ante, at 20, those differences do not save today's decision from inconsistency with the prior pronouncement. A districting plan violates §5 if it diminishes the ability of minority voters to "elect their preferred candidates of choice," §1973c(b), as measured against the minority's previous electoral opportunity, Ashcroft, supra, at 477. A districting plan violates §2 if it diminishes the ability of minority voters to "elect representatives of their choice," 42 U.S.C. §1973(b) (2000 ed.), as measured under a totality of the circumstances against a baseline of rough proportionality. It makes no sense to say that a crossover district counts as a minority-opportunity district when comparing the past and the present under §5, but not when comparing the present and the possible under §2. 6 Finally, the plurality tries to support its insistence on a 50% threshold by invoking the policy of constitutional avoidance, which calls for construing a statute so as to avoid a possibly unconstitutional result. The plurality suggests that allowing a lower threshold would "require crossover districts throughout the Nation," ante, at 17, thereby implicating the principle of Shaw v. Reno that districting with an excessive reliance on race is unconstitutional ("excessive" now being equated by the plurality with the frequency of creating opportunity districts). But the plurality has it precisely backwards. A State will inevitably draw some crossover districts as the natural byproduct of districting based on traditional factors. If these crossover districts count as minority-opportunity districts, the State will be much closer to meeting its §2 obligation without any reference to race, and fewer minority-opportunity districts will, therefore, need to be created purposefully. But if, as a matter of law, only majority-minority districts provide a minority seeking equality with the opportunity to elect its preferred candidates, the State will have much further to go to create a sufficient number of minority-opportunity districts, will be required to bridge this gap by creating exclusively majority-minority districts, and will inevitably produce a districting plan that reflects a greater focus on race. The plurality, however, seems to believe that any reference to race in districting poses a constitutional concern, even a State's decision to reduce racial blocs in favor of crossover districts. A judicial position with these consequences is not constitutional avoidance. IV More serious than the plurality opinion's inconsistency with prior cases construing §2 is the perversity of the results it portends. Consider the effect of the plurality's rule on North Carolina's districting scheme. Black voters make up approximately 20% of North Carolina's VAP4 and are distributed throughout 120 State House districts, App. to Pet. for Cert. 58a. As noted before, black voters constitute more than 50% of the VAP in 9 of these districts and over 39% of the VAP in an additional 12. Supra, at 7-8. Under a functional approach to §2, black voters in North Carolina have an opportunity to elect (and regularly do elect) the representative of their choice in as many as 21 House districts, or 17.5% of North Carolina's total districts. See App. 109-110. North Carolina's districting plan is therefore close to providing black voters with proportionate electoral opportunity. According to the plurality, however, the remedy of a crossover district cannot provide opportunity to minority voters who lack it, and the requisite opportunity must therefore be lacking for minority voters already living in districts where they must rely on crossover. By the plurality's reckoning, then, black voters have an opportunity to elect representatives of their choice in, at most, nine North Carolina House districts. See ibid. In the plurality's view, North Carolina must have a long way to go before it satisfies the §2 requirement of equal electoral opportunity.5 A State like North Carolina faced with the plurality's opinion, whether it wants to comply with §2 or simply to avoid litigation, will, therefore, have no reason to create crossover districts. Section 2 recognizes no need for such districts, from which it follows that they can neither be required nor be created to help the State meet its obligation of equal electoral opportunity under §2. And if a legislature were induced to draw a crossover district by the plurality's encouragement to create them voluntarily, ante, at 20-21, it would open itself to attack by the plurality based on the pointed suggestion that a policy favoring crossover districts runs counter to Shaw. The plurality has thus boiled §2 down to one option: the best way to avoid suit under §2, and the only way to comply with §2, is by drawing district lines in a way that packs minority voters into majority-minority districts, probably eradicating crossover districts in the process. Perhaps the plurality recognizes this aberrant implication, for it eventually attempts to disavow it. It asserts that "§2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. . . . [But] §2 does not mandate creating or preserving crossover districts." Ante, at 19. See also, ante, at 20 (crossover districts "can be evidence ... of equal political opportunity ..."). But this is judicial fiat, not legal reasoning; the plurality does not even attempt to explain how a crossover district can be a minority-opportunity district when assessing the compliance of a districting plan with §2, but cannot be one when sought as a remedy to a §2 violation. The plurality cannot have it both ways. If voluntarily drawing a crossover district brings a State into compliance with §2, then requiring creation of a crossover district must be a way to remedy a violation of §2, and eliminating a crossover district must in some cases take a State out of compliance with the statute. And when the elimination of a crossover district does cause a violation of §2, I cannot fathom why a voter in that district should not be able to bring a claim to remedy it. In short, to the extent the plurality's holding is taken to control future results, the plurality has eliminated the protection of §2 for the districts that best vindicate the goals of the statute, and has done all it can to force the States to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics. I respectfully dissent. GARY BARTLETT, EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS, etal., PETITIONERS v. DWIGHT STRICKLAND etal. on writ of certiorari to the supreme court of north carolina [March 9, 2009] Justice Ginsburg, dissenting. I join Justice Souter's powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality's interpretation of §2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute's estimable aim. Today's decision returns the ball to Congress' court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2. GARY BARTLETT, EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS, etal., PETITIONERS v. DWIGHT STRICKLAND etal. on writ of certiorari to the supreme court of north carolina [March 9, 2009] Justice Breyer, dissenting. I join Justice Souter's opinion in full. I write separately in light of the plurality's claim that a bright-line 50% rule (used as a Gingles gateway) serves administrative objectives. In the plurality's view, that rule amounts to a relatively simple administrative device that will help separate at the outset those cases that are more likely meritorious from those that are not. Even were that objective as critically important as the plurality believes, however, it is not difficult to find other numerical gateway rules that would work better. Assume that a basic purpose of a gateway number is to separate (1) districts where a minority group can "elect representatives of their choice," from (2) districts where the minority, because of the need to obtain majority crossover votes, can only "elect representatives" that are consensus candidates. 42 U. S. C. §1973(b) (2000 ed.); League of United Latin American Citizens v. Perry, 548 U. S. 399, 445 (2006) (plurality opinion). At first blush, one might think that a 50% rule will work in this respect. After all, if a 50% minority population votes as a bloc, can it not always elect the candidate of its choice? And if a minority population constitutes less than 50% of a district, is not any candidate elected from that district always a consensus choice of minority and majority voters? The realities of voting behavior, however, make clear that the answer to both these questions is "no." See, e.g., Brief for Nathaniel Persily etal. as Amici Curiae 5-6. ("Fifty percent is seen as a magic number by some because under conditions of complete racial polarization and equal rates of voting eligibility, registration, and turnout, the minority community will be able to elect its candidate of choice. In practice, such extreme conditions are never present. . . . [S]ome districts must be more than 50% minority, while others can be less than 50% minority, in order for the minority community to have an equal opportunity to elect its candidate of choice" (emphasis added)); see also ante, at 8 (Souter, J., dissenting). No voting group is 100% cohesive. Except in districts with overwhelming minority populations, some crossover votes are often necessary. The question is how likely it is that the need for crossover votes will force a minority to reject its "preferred choice" in favor of a "consensus candidate." A 50% number does not even try to answer that question. To the contrary, it includes, say 51% minority districts, where imperfect cohesion may, in context, prevent election of the "minority-preferred" candidate, while it excludes, say, 45% districts where a smaller but more cohesive minority can, with the help of a small and reliable majority crossover vote, elect its preferred candidate. Why not use a numerical gateway rule that looks more directly at the relevant question: Is the minority bloc large enough, is it cohesive enough, is the necessary majority crossover vote small enough, so that the minority (tending to vote cohesively) can likely vote its preferred candidate (rather than a consensus candidate) into office? See ante, at 7 (Souter, J., dissenting) ("[E]mpirical studies confirm[] that . . . minority groups" constituting less than 50% of the voting population "regularly elect their preferred candidates with the help of modest crossover by members of the majority"); see also Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1529-1535 (2002) (reviewing studies showing small but reliable crossover voting by whites in districts where minority voters have demonstrated the ability to elect their preferred candidates without constituting 50% of the population in that district). We can likely find a reasonably administrable mathematical formula more directly tied to the factors in question. To take a possible example: Suppose we pick a numerical ratio that requires the minority voting age population to be twice as large as the percentage of majority crossover votes needed to elect the minority's preferred candidate. We would calculate the latter (the percentage of majority crossover votes the minority voters need) to take account of both the percentage of minority voting age population in the district and the cohesiveness with which they vote. Thus, if minority voters account for 45% of the voters in a district and 89% of those voters tend to vote cohesively as a group, then the minority needs a crossover vote of about 20% of the majority voters to elect its preferred candidate. (Such a district with 100 voters would have 45 minority voters and 55 majority voters; 40 minority voters would vote for the minority group's preferred candidate at election time; the minority voters would need 11 more votes to elect their preferred candidate; and 11 is about 20% of the majority's 55.) The larger the minority population, the greater its cohesiveness, and thus the smaller the crossover vote needed to assure success, the greater the likelihood that the minority can elect its preferred candidate and the smaller the likelihood that the cohesive minority, in order to find the needed majority crossover vote, must support a consensus, rather than its preferred, candidate. In reflecting the reality that minority voters can elect the candidate of their choice when they constitute less than 50% of a district by relying on a small majority crossover vote, this approach is in no way contradictory, or even in tension with, the third Gingles requirement. Since Gingles itself, we have acknowledged that the requirement of majority-bloc voting can be satisfied even when some small number of majority voters crossover to support a minority-preferred candidate. See Thornburg v. Gingles, 478 U.S. 30, 59 (1986) (finding majority-bloc voting where the majority group supported African-American candidates in the general election at a rate of between 26% and 49%, with an average support of one-third). Given the difficulty of obtaining totally accurate statistics about cohesion, or even voting age population, the district courts should administer the numerical ratio flexibly, opening (or closing) the Gingles gate (in light of the probable merits of a case) where only small variances are at issue (e.g., where the minority group is 39% instead of 40% of a district). But the same is true with a 50% number (e.g., where the minority group is 49% instead of 50% of a district). See, e.g., Brief for United States as Amicus Curiae 15. I do not claim that the 2-to-1 ratio is a perfect rule; I claim only that it is better than the plurality's 50% rule. After all, unlike 50%, a 2-to-1 ratio (of voting age minority population to necessary non-minority crossover votes) focuses directly upon the problem at hand, better reflects voting realities, and consequently far better separates at the gateway likely sheep from likely goats. See Gingles, supra, at 45 (The Section 2 inquiry depends on a "'functional' view of the political process" and "'a searching practical evaluation of the past and present reality.'" (quoting S. Rep. No. 97-417, p.30, and n. 120 (1982)); Gingles, supra, at 94-95 (O'Connor, J., concurring in judgment) ("[T]here is no indication that Congress intended to mandate a single, universally applicable standard for measuring undiluted minority voting strength, regardless of local conditions . . . "). In most cases, the 50% rule and the 2-to-1 rule would have roughly similar effects. Most districts where the minority voting age population is greater than 50% will almost always satisfy the 2-to-1 rule; and most districts where the minority population is below 40% will almost never satisfy the 2-to-1 rule. But in districts with minority voting age populations that range from 40% to 50%, the divergent approaches of the two standards can make a critical difference--as well they should. In a word, Justice Souter well explains why the majority's test is ill suited to the statute's objectives. I add that the test the majority adopts is ill suited to its own administrative ends. Better gateway tests, if needed, can be found. With respect, I dissent. FOOTNOTESFootnote 1We have previously illustrated this in stylized fashion: "Assume a hypothetical jurisdiction of 1,000 voters divided into 10 districts of 100 each, where members of a minority group make up 40 percent of the voting population and voting is totally polarized along racial lines. With the right geographic dispersion to satisfy the compactness requirement, and with careful manipulation of district lines, the minority voters might be placed in control of as many as 7 of the 10 districts. Each such district could be drawn with at least 51 members of the minority group, and whether the remaining minority voters were added to the groupings of 51 for safety or scattered in the other three districts, minority voters would be able to elect candidates of their choice in all seven districts." Johnson v. De Grandy, 512 U.S. 997, 1016 (1994). Footnote 2Of course, this does not create an entitlement to proportionate minority representation. Nothing in the statute promises electoral success. Rather, §2 simply provides that, subject to qualifications based on a totality of circumstances, minority voters are entitled to a practical chance to compete in a roughly proportionate number of districts. Id., at 1014, n.11. "[M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground." Id., at 1020. Footnote 3This case is an entirely inappropriate vehicle for speculation about a more exact definition of majority-bloc voting. See supra, at 8-9. The political science literature has developed statistical methods for assessing the extent of majority-bloc voting that are far more nuanced than the plurality's 50% rule. See, e.g., Pildes 1534-1535 (describing a "falloff rate" that social scientists use to measure the comparative rate at which whites vote for black Democratic candidates compared to white Democratic candidates and noting that the falloff rate for congressional elections during the 1990s in North Carolina was 9%). But this issue was never briefed in this case and is not before us, the respondents having stipulated to the existence of majority-bloc voting, App. to Pet. for Cert. 130a, and there is no reason to attempt to accomplish in this case through the first Gingles factor what would actually be a quantification of the third. Footnote 4Compare Dept. of Commerce, Bureau of Census, 2000 Voting Age Population and Voting-Age Citizens (PHC-T-31) (Table 1-1), online at http://www.census.gov/population/www/cen2000/briefs/phc-t31/index.html (as visited March 5, 2009, and available in Clerk of Court's case file) (total VAP in North Carolina is 6,087,996), with id., Table 1-3 (black or African-American VAP is 1,216,622). Footnote 5Under the same logic, North Carolina could fracture and submerge in majority-dominated districts the 12 districts in which black voters constitute between 35% and 49% of the voting population and routinely elect the candidates of their choice without ever implicating §2, and could do so in districts not covered by §5 without implicating the VRA at all. The untenable implications of the plurality's rule do not end there. The plurality declares that its holding "does not apply to cases in which there is intentional discrimination against a racial minority." Ante, at 15. But the logic of the plurality's position compels the absurd conclusion that the invidious and intentional fracturing of crossover districts in order to harm minority voters would not state a claim under §2. After all, if the elimination of a crossover district can never deprive minority voters in the district of the opportunity "to elect representatives of their choice," minorities in an invidiously eliminated district simply cannot show an injury under §2.

conservative

public_entity

civil_rights

1971-125-01

United States Supreme Court UNITED STATES v. MIDWEST VIDEO CORP.(1972) No. 71-506 Argued: April 19, 1972Decided: June 7, 1972 The Federal Communications Commission (FCC) promulgated a rule that "no CATV system having 3,500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by cablecasting [i. e., originating programs] and has available facilities for local production and presentation of programs other than automated services." Upon challenge of respondent, an operator of CATV systems subject to the new requirement, the Court of Appeals set aside the regulation on the ground that the FCC had no authority to issue it. Held: The judgment is reversed. Pp. 659-675. 441 F.2d 1322, reversed. MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concluded that: 1. The rule is within the FCC's statutory authority to regulate CATV at least to the extent "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S. 157, 178 . Pp. 659-670. 2. In the light of the record in this case, there is substantial evidence that the rule, with its 3,500 standard and as it is applied under FCC guidelines for waiver on a showing of financial hardship, will promote the public interest within the meaning of the Communications Act of 1934. Pp. 671-675. THE CHIEF JUSTICE concluded that until Congress acts to deal with the problems brought about by the emergence of CATV, the FCC should be allowed wide latitude. Pp. 675-676. BRENNAN, J., announced the Court's judgment and delivered an opinion in which WHITE, MARSHALL, and BLACKMUN, JJ., joined. BURGER, C. J., filed an opinion concurring in the result, post, p. 675. DOUGLAS, J., filed a dissenting opinion, in which STEWART, POWELL, and REHNQUIST, JJ., joined, post, p. 677. [406 U.S. 649, 650] Deputy Solicitor General Wallace argued the cause for the United States et al. With him on the briefs were Solicitor General Griswold, Richard B. Stone, John W. Pettit, and Edward J. Kuhlmann. Harry M. Plotkin argued the cause for respondent. With him on the brief were Wayne W. Owen, George H. Shapiro, and David Tillotson. Briefs of amici curiae urging affirmance were filed by William J. Scott, Attorney General, Peter A. Fasseas, Special Assistant Attorney General, and Roland S. Homet, Jr., for the State of Illinois; by Paul Rodgers for the National Association of Regulatory Utility Commissioners; and by Melvin L. Wulf for the American Civil Liberties Union. MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join. Community antenna television (CATV) was developed long after the enactment of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. 151 et seq., as an auxiliary to broadcasting through the retransmission by wire of intercepted television signals to viewers otherwise unable to receive them because of distance or local terrain. 1 In United States v. Southwestern Cable Co., 392 U.S. 157 (1968), where we sustained the jurisdiction of [406 U.S. 649, 651] the Federal Communications Commission to regulate the new industry, at least to the extent "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," id., at 178, we observed that the growth of CATV since the establishment of the first commercial system in 1950 has been nothing less than "`explosive.'" Id., at 163. 2 The potential of the new industry to augment communication services now available is equally phenomenal. 3 As we said in Southwestern, id., at 164, CATV "[promises] for the future to provide a national communications system, in which signals from selected broadcasting centers would be transmitted to metropolitan areas throughout the country." Moreover, as the Commission has noted, "the expanding multichannel capacity of cable systems could be utilized to provide a variety of new communications services to homes and businesses within a community," such as facsimile reproduction of documents, electronic mail delivery, and information retrieval. Notice of Proposed Rulemaking and Notice of Inquiry, 15 F. C. C. 2d 417, 419-420 (1968). Perhaps more important, CATV systems can themselves originate programs, or "cablecast" - which means, the Commission has found, that CATV can "[increase] the number of local outlets for community self-expression and [augment] the public's choice of programs and types of service, without use of broadcast spectrum . . . ." Id., at 421. [406 U.S. 649, 652] Recognizing this potential, the Commission, shortly after our decision in Southwestern, initiated a general inquiry "to explore the broad question of how best to obtain, consistent with the public interest standard of the Communications Act, the full benefits of developing communications technology for the public, with particular immediate reference to CATV technology . . . ." Id., at 417. In particular, the Commission tentatively concluded, as part of a more expansive program for the regulation of CATV, 4 "that, for now and in general, CATV program origination is in the public interest," id., at 421, and sought comments on a proposal "to condition the carriage of television broadcast signals (local or distant) upon a requirement that the CATV system also operate to a significant extent as a local outlet by originating." [406 U.S. 649, 653] Id., at 422. As for its authority to impose such a requirement, the Commission stated that its "concern with CATV carriage of broadcast signals is not just a matter of avoidance of adverse effects, but extends also to requiring CATV affirmatively to further statutory policies." Ibid. On the basis of comments received, the Commission on October 24, 1969, adopted a rule providing that "no CATV system having 3,500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a significant extent 5 as a local outlet by cablecasting 6 and has available facilities for local production and presentation of programs other [406 U.S. 649, 654] than automated services." 47 CFR 74.1111 (a). 7 In a report accompanying this regulation, the Commission stated that the tentative conclusions of its earlier notice of proposed rulemaking "recognize the great potential of the cable technology to further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services . . . . They also reflect our view that a multi-purpose CATV operation combining carriage of broadcast signals with program origination and common carrier services, 8 might best exploit cable channel capacity to the advantage of the public and promote the basic purpose for which this Commission was created: `regulating interstate and foreign commerce in communication [406 U.S. 649, 655] by wire and radio so as to make available, so far as possible, to all people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges . . .' (sec. 1 of the Communications Act). 9 After full consideration of the comments filed by the parties, we adhere to the view that program origination on CATV is in the public interest." 10 First Report and Order, 20 F. C. C. 2d 201, 202 (1969). [406 U.S. 649, 656] The Commission further stated, id., at 208-209: "The use of broadcast signals has enabled CATV to finance the construction of high capacity cable facilities. In requiring in return for these uses of radio that CATV devote a portion of the facilities to providing needed origination service, we are furthering our statutory responsibility to `encourage the larger and more effective use of radio in the public interest' (sec. 303 (g)). 11 The requirement will also facilitate the more effective performance of the Commission's duty to provide a fair, efficient, and equitable distribution of television service to each of the several States and communities (sec. 307 (b)), 12 in areas where we have been unable to accomplish this through broadcast media." 13 [406 U.S. 649, 657] Upon the challenge of respondent Midwest Video Corp., an operator of CATV systems subject to the new cablecasting requirement, the United States Court of Appeals for the Eighth Circuit set aside the regulation on the ground that the Commission "is without authority to impose" it. 441 F.2d 1322, 1328 (1971). 14 "The Commission's power [over CATV] . . .," the court explained, "must be based on the Commission's right to adopt rules that are reasonably ancillary to its responsibilities [406 U.S. 649, 658] in the broadcasting field," id., at 1326 - a standard that the court thought the Commission's regulation "goes far beyond." Id., at 1327. 15 The court's opinion may also be understood to hold the regulation invalid as not supported by substantial evidence that it would serve the public interest. "The Commission report itself shows," the court said, "that upon the basis of the record made, it is highly speculative whether there is sufficient expertise or information available to support a finding that the origination rule will further the public interest." Id., at 1328. "Entering into the program origination field involves very substantial expenditures," id., at 1327, and "[a] high probability exists that cablecasting will not be self-supporting," that there will be a "substantial increase" in CATV subscription fees, and that "in some instances" CATV operators will be driven out of business. Ibid. 16 We granted certiorari. 404 U.S. 1014 (1972). We reverse. [406 U.S. 649, 659] I In 1966 the Commission promulgated regulations that, in general, required CATV systems (1) to carry, upon request and in a specified order of priority within the limits of their channel capacity, the signals of broadcast stations into whose service area they brought competing signals; (2) to avoid, upon request, the duplication on the same day of local station programing; and (3) to refrain from bringing new distant signals into the 100 largest television markets except upon a prior showing that service would be consistent with the public interest. See Second Report and Order, 2 F. C. C. 2d 725 (1966). In assessing the Commission's jurisdiction over CATV against the backdrop of these regulations, 17 we focused in Southwestern chiefly on 2 (a) of the Communications Act, 48 Stat. 1064, as amended, 47 U.S.C. 152 (a), which provides in pertinent part: "The provisions of this [Act] shall apply to all interstate and foreign communication by wire or radio . . ., which originates and/or is received within the United States, and to all persons engaged within the United States in such communication . . . ." In view of the Act's definitions of "communication by wire" and "communication by radio," 18 the interstate character of CATV services, 19 [406 U.S. 649, 660] and the evidence of congressional intent that "[t]he Commission was expected to serve as the `single Government agency' with `unified jurisdiction' and `regulatory power over all forms of electrical communication, whether by telephone, telegraph, cable, or radio,'" 392 U.S., at 167 -168 (footnotes omitted), we held that 2 (a) amply covers CATV systems and operations. We also held that 2 (a) is itself a grant of regulatory power and not merely a prescription of the forms of communication to which the Act's other provisions governing common carriers and broadcasters apply: "We cannot [we said] construe the Act so restrictively. Nothing in the language of [2 (a)], in the surrounding language, or in the Act's history or purposes limits the Commission's authority to those activities and forms of communication that are specifically described by the Act's other provisions. . . . Certainly Congress could not in 1934 have foreseen the development of community antenna television systems, but it seems to us that it was precisely because Congress wished `to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission,' F. C. C. v. Pottsville Broadcasting Co., [309 U.S.], [406 U.S. 649, 661] at 138, that it conferred upon the Commission a `unified jurisdiction' and `broad authority.' Thus, `[u]nderlying the whole [Communications Act] is recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors.' [Ibid.] Congress in 1934 acted in a field that was demonstrably `both new and dynamic,' and it therefore gave the Commission `a comprehensive mandate,' with `not niggardly but expansive powers.' National Broadcasting Co. v. United States, 319 U.S. 190, 219 . We have found no reason to believe that 2. does not, as its terms suggest, confer regulatory authority over `all interstate . . . communication by wire or radio.'" Id., at 172-173 (footnotes omitted). This conclusion, however, did not end the analysis, for 2 (a) does not in and of itself prescribe any objectives for which the Commission's regulatory power over CATV might properly be exercised. We accordingly went on to evaluate the reasons for which the Commission had asserted jurisdiction and found that "the Commission has reasonably concluded that regulatory authority over CATV is imperative if it is to perform with appropriate effectiveness certain of its other responsibilities." Id., at 173. In particular, we found that the Commission had reasonably determined that "`the unregulated explosive growth of CATV,'" especially through "its importation of distant signals into the service areas of local stations" and the resulting division of audiences and revenues, threatened to "deprive the public of the various benefits of [the] system of local broadcasting stations" that the Commission was charged with developing and overseeing under 307 (b) of the [406 U.S. 649, 662] Act. 20 Id., at 175. We therefore concluded, without expressing any view "as to the Commission's authority, if any, to regulate CATV under any other circumstances or for any other purposes," that the Commission does have jurisdiction over CATV "reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting . . . [and] may, for these purposes, issue `such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,' as `public convenience, interest, or necessity requires.'" Id., at 178 (quoting 303 (r) of the Act, 50 Stat. 191, 47 U.S.C. 303 (r)). The parties now before us do not dispute that in light of Southwestern CATV transmissions are subject to the Commission's jurisdiction as "interstate . . . communication by wire or radio" within the meaning of 2 (a) even insofar as they are local cablecasts. 21 The controversy, [406 U.S. 649, 663] instead, centers on whether the Commission's program-origination rule is "reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting." 22 We hold that it is. [406 U.S. 649, 664] At the outset we must note that the Commission's legitimate concern in the regulation of CATV is not limited to controlling the competitive impact CATV may have on broadcast services. Southwestern refers to the Commission's "various responsibilities for the regulation of television broadcasting." These are considerably more numerous than simply assuring that broadcast stations operating in the public interest do not go out of business. Moreover, we must agree with the Commission that its "concern with CATV carriage of broadcast signals is not just a matter of avoidance of adverse effects, but extends also to requiring CATV affirmatively to further statutory policies." Supra, at 653. Since the avoidance of adverse effects is itself the furtherance of statutory policies, no sensible distinction even in theory can be drawn along those lines. More important, CATV systems, no less than broadcast stations, see, e. g., Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266 (1933) (deletion of a station), may enhance as well as impair the appropriate [406 U.S. 649, 665] provision of broadcast services. Consequently, to define the Commission's power in terms of the protection, as opposed to the advancement, of broadcasting objectives would artificially constrict the Commission in the achievement of its statutory purposes and be inconsistent with our recognition in Southwestern "that it was precisely because Congress wished `to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission,' . . . that it conferred upon the Commission a `unified jurisdiction' and `broad authority.'" Supra, at 660-661. 23 The very regulations that formed the backdrop for our decision in Southwestern demonstrate this point. Those regulations were, of course, avowedly designed to guard broadcast services from being undermined by unregulated CATV growth. At the same time, the Commission recognized that "CATV systems . . . have arisen in response to public need and demand for improved television service and perform valuable public services in this respect." Second Report and Order, 2 F. C. C. 2d 725, 745 (1966). 24 Accordingly, the Commission's express purpose was not "to deprive the public of these important benefits or to restrict the enriched programing selection which [406 U.S. 649, 666] CATV makes available. Rather, our goal here is to integrate the CATV service into the national television structure in such a way as to promote maximum television service to all people of the United States (secs. 1 and 303 (g) of the act [nn. 9 and 11, supra]), both those who are cable viewers and those dependent on off-the-air service. The new rules . . . are the minimum measures we believe to be essential to insure that CATV continues to perform its valuable supplementary role without unduly damaging or impeding the growth of television broadcast service." Id., at 745-746. 25 In implementation of this approach CATV systems were required to carry local broadcast station signals to encourage diversified programing suitable to the community's needs as well as to prevent a diversion of audiences and advertising revenues. 26 The duplication of [406 U.S. 649, 667] local station programing was also forbidden for the latter purpose, but only on the same day as the local broadcast so as "to preserve, to the extent practicable, the valuable public contribution of CATV in providing wider access to nationwide programing and a wider selection of programs on any particular day." Id., at 747. Finally, the distant-importation rule was adopted to enable the Commission to reach a public-interest determination weighing the advantages and disadvantages of the proposed service on the facts of each individual case. See id., at 776, 781-782. In short, the regulatory authority asserted by the Commission in 1966 and generally sustained by this Court in Southwestern was authority to regulate CATV with a view not merely to protect but to promote the objectives for which the Commission had been assigned jurisdiction over broadcasting. In this light the critical question in this case is whether the Commission has reasonably determined that its origination rule will "further the achievement of long-established [406 U.S. 649, 668] regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services . . . ." Supra, at 654. We find that it has. The goals specified are plainly within the Commission's mandate for the regulation of television broadcasting. 27 In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), for example, we sustained Commission regulations governing relations between broadcast stations and network organizations for the purpose of preserving the stations' ability to serve the public interest through their programing. Noting that "[t]he facilities of radio are not large enough to accommodate all who wish to use them," id., at 216, we held that the Communications "Act does not restrict the Commission merely to supervision of [radio] traffic. It puts upon the Commission the burden of determining the composition of that traffic." Id., at 215-216. We then upheld the Commission's judgment that "`[w]ith the number of radio channels limited by natural factors, the public interest demands that those who are entrusted with the available channels shall make the fullest and most effective use of them.'" Id., at 218. "`A station licensee must retain sufficient freedom of action to supply the program . . . needs of the local community. Local program service is a vital part of community life. A station should be ready, [406 U.S. 649, 669] able, and willing to serve the needs of the local community by broadcasting such outstanding local events as community concerts, civic meetings, local sports events, and other programs of local consumer and social interest.'" Id., at 203. Equally plainly the broadcasting policies the Commission has specified are served by the program-origination rule under review. To be sure, the cablecasts required may be transmitted without use of the broadcast spectrum. But the regulation is not the less, for that reason, reasonably ancillary to the Commission's jurisdiction over broadcast services. The effect of the regulation, after all, is to assure that in the retransmission of broadcast signals viewers are provided suitably diversified programing - the same objective underlying regulations sustained in National Broadcasting Co. v. United States, supra, as well as the local-carriage rule reviewed in Southwestern and subsequently upheld. See supra, at 666 and nn. 17 and 26, supra. In essence the regulation is no different from Commission rules governing the technological quality of CATV broadcast carriage. In the one case, of course, the concern is with the strength of the picture and voice received by the subscriber, while in the other it is with the content of the programing offered. But in both cases the rules serve the policies of 1 and 303 (g) of the Communications Act on which the cablecasting regulation is specifically premised, see supra, at 654-656, 28 and also, in the Commission's words, [406 U.S. 649, 670] "facilitate the more effective performance of [its] duty to provide a fair, efficient, and equitable distribution of television service to each of the several States and communities" under 307 (b). Supra, at 656. 29 In sum, the regulation preserves and enhances the integrity of broadcast signals and therefore is "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." Respondent, nevertheless, maintains that just as the Commission is powerless to require the provision of television broadcast services where there are no applicants for station licenses no matter how important or desirable those services may be, so, too, it cannot require CATV operators unwillingly to engage in cablecasting. In our view, the analogy respondent thus draws between entry into broadcasting and entry into cablecasting is misconceived. The Commission is not attempting to compel wire service where there has been no commitment to undertake it. CATV operators to whom the cablecasting rule applies have voluntarily engaged themselves in providing that service, and the Commission seeks only to ensure that it satisfactorily meets community needs within the context of their undertaking. For these reasons we conclude that the program-origination rule is within the Commission's authority recognized in Southwestern. [406 U.S. 649, 671] II The question remains whether the regulation is supported by substantial evidence that it will promote the public interest. We read the opinion of the Court of Appeals as holding that substantial evidence to that effect is lacking because the regulation creates the risk that the added burden of cablecasting will result in increased subscription rates and even the termination of CATV services. That holding is patently incorrect in light of the record. In first proposing the cablecasting requirement, the Commission noted that "[t]here may . . . be practical limitations [for compliance] stemming from the size of some CATV systems" and accordingly sought comments "as to a reasonable cutoff point [for application of the regulation] in light of the cost of the equipment and personnel minimally necessary for local originations." Notice of Proposed Rulemaking and Notice of Inquiry, 15 F. C. C. 2d 417, 422 (1968). The comments filed in response to this request included detailed data indicating, for example, that a basic monochrome system for cablecasting could be obtained and operated for less than an annual cost of $21,000 and a color system, for less than $56,000. See First Report and Order 210. This information, however, provided only a sampling of the experience of the CATV systems already engaged in program origination. Consequently, the Commission "decided not to prescribe a permanent minimum cutoff point for required origination on the basis of the record now before us. The Commission intends to obtain more information from originating systems about their experience, equipment, and the nature of the origination effort. . . . In the meantime, we [406 U.S. 649, 672] will prescribe a very liberal standard for required origination, with a view toward lowering this floor in . . . further proceedings, should the data obtained in such proceedings establish the appropriateness and desirability of such action." Id., at 213. On this basis the Commission chose to apply the regulation to systems with 3,500 or more subscribers, effective January 1, 1971. "This standard [the Commission explained] appears more than reasonable in light of the [data filed], our decision to permit advertising at natural breaks . . ., and the 1-year grace period. Moreover, it appears that approximately 70 percent of the systems now originating have fewer than 3,500 subscribers; indeed, about half of the systems now originating have fewer than 2,000 subscribers. . . . [T]he 3,500 standard will encompass only a very small percentage of existing systems at present subscriber levels, less than 10 percent." Ibid. On petitions for reconsideration the Commission observed that it had "been given no data tending to demonstrate that systems with 3,500 subscribers cannot cablecast without impairing their financial stability, raising rates or reducing the quality of service." Memorandum Opinion and Order 826. The Commission repeated that "[t]he rule adopted is minimal in the light of the potentials of cablecasting," 30 but, nonetheless, on its own motion postponed the effective date of the regulation to April 1, 1971, "to afford additional preparation time." Id., at 827. This was still not the Commission's final effort to tailor the regulation to the financial capacity of CATV operators. [406 U.S. 649, 673] In denying respondent's motion for a stay of the effective date of the rule, the Commission reiterated that "there has been no showing made to support the view that compliance . . . would be an unsustainable burden." Memorandum Opinion and Order, 27 F. C. C. 2d 778, 779 (1971). On the other hand, the Commission recognized that new information suggested that CATV systems of 10,000 ultimate subscribers would operate at a loss for at least four years if required to cablecast. That information, however, was based on capital expenditure and annual operating cost figures "appreciably higher" than those first projected by the Commission. Ibid. The Commission concluded: "While we do not consider that an adequate showing has been made to justify general change, we see no public benefit in risking injury to CATV systems in providing local origination. Accordingly, if CATV operators with fewer than 10,000 subscribers request ad hoc waiver of [the regulation], they will not be required to originate pending action on their waiver requests. . . . Systems of more than 10,000 subscribers may also request waivers, but they will not be excused from compliance unless the Commission grants a requested waiver . . . . [The] benefit [of cablecasting] to the public would be delayed if the . . . stay [requested by respondent] is granted, and the stay would, therefore, do injury to the public's interest." Ibid. This history speaks for itself. The cablecasting requirement thus applied is plainly supported by substantial evidence that it will promote the public interest. 31 Indeed, respondent does not appear to argue [406 U.S. 649, 674] to the contrary. See Tr. of Oral Arg. 43-44. It was, of course, beyond the competence of the Court of Appeals itself to assess the relative risks and benefits of cablecasting. As we said in National Broadcasting Co. v. United States, 319 U.S., at 224 : "Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress. It is not for us to [406 U.S. 649, 675] say that the `public interest' will [in fact] be furthered or retarded by the . . . [regulation]." See also, e. g., United States v. Storer Broadcasting Co., 351 U.S. 192, 203 (1956); General Telephone Co. of Southwest v. United States, 449 F.2d 846, 858-859, 862-863 (CA5 1971). Reversed. Footnotes [Footnote 1 "CATV systems receive the signals of television broadcasting stations, amplify them, transmit them by cable or microwave, and ultimately distribute them by wire to the receivers of their subscribers." United States v. Southwestern Cable Co., 392 U.S. 157, 161 (1968). They "perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae." Id., at 163. [Footnote 2 There are now 2,678 CATV systems in operation, 1,916 CATV franchises outstanding for systems not yet in current operation, and 2,804 franchise applications pending. Weekly CATV Activity Addenda, 12 Television Digest 9 (Feb. 28, 1972). [Footnote 3 For this reason the Commission has recently adopted the term "cable television" in place of CATV. See Report and Order on Cable Television Service; Cable Television Relay Service, 37 Fed. Reg. 3252 n. 9 (1972) (hereinafter cited as Report and Order on Cable Television Service). [Footnote 4 The early regulatory history of CATV, canvassed in Southwestern, need not be repeated here, other than to note that in 1966 the Commission adopted rules, applicable to both microwave and non-microwave CATV systems, to regulate the carriage of local signals, the duplication of local programing, and the importation of distant signals into the 100 largest television markets. See infra, at 659. The Commission's 1968 notice of proposed rulemaking addressed, in addition to the program origination requirement at issue here, whether advertising should be permitted on cablecasts and whether the broadcast doctrines of "equal time," "fairness," and sponsorship identification should apply to them. Other areas of inquiry included the use of CATV facilities to provide common carrier service; federal licensing and local regulation of CATV; cross-ownership of television stations and CATV systems; reporting and technical standards; and importation of distant signals into major markets. The notice offered concrete proposals in some of these areas, which were acted on in the Commission's First Report and Order, 20 F. C. C. 2d 201 (1969) (hereinafter cited as First Report and Order), and Report and Order on Cable Television Service. See also Memorandum Opinion and Order, 23 F. C. C. 2d 825 (1970) (hereinafter cited as Memorandum Opinion and Order). None of these regulations, aside from the cablecasting requirement, is now before us, see n. 14, infra, and we, of course, intimate no view on their validity. [Footnote 5 "By significant extent [the Commission indicated] we mean something more than the origination of automated services (such as time and weather, news ticker, stock ticker, etc.) and aural services (such as music and announcements). Since one of the purposes of the origination requirement is to insure that cablecasting equipment will be available for use by others originating on common carrier channels, `operation to a significant extent as a local outlet' in essence necessitates that the CATV operator have some kind of video cablecasting system for the production of local live and delayed programing (e. g., a camera and a video tape recorder, etc.)." First Report and Order 214. [Footnote 6 "Cablecasting" was defined as "programing distributed on a CATV system which has been originated by the CATV operator or by another entity, exclusive of broadcast signals carried on the system." 47 CFR 74.1101 (j). As this definition makes clear, cablecasting may include not only programs produced by the CATV operator, but "films and tapes produced by others, and CATV network programing." First Report and Order 214. See also id., at 203. The definition has been altered to conform to changes in the regulation, see n. 7, infra, and now appears at 47 CFR 76.5 (w). See Report and Order on Cable Television Service 3279. Although the definition now refers to programing "subject to the exclusive control of the cable operator," this is apparently not meant to effect a change in substance or to preclude the operator from cablecasting programs produced by others. See id., at 3271. [Footnote 7 This requirement, applicable to both microwave and non-microwave CATV systems without any "grandfathering" provision, was originally scheduled to go into effect on January 1, 1971. See First Report and Order 223. On petitions for reconsideration, however, the effective date was delayed until April 1, 1971, see Memorandum Opinion and Order 827, 830, and then, after the Court of Appeals decision below, suspended pending final judgment here. See 36 Fed. Reg. 10876 (1971). Meanwhile, the regulation has been revised and now appears at 47 CFR 76.201 (a). The revision has no significance for this case. See Memorandum Opinion and Order 827, 830 (revision effective Aug. 14, 1970); Report and Order on Cable Television Service 3271, 3277, 3287 (revision effective Mar. 31, 1972). [Footnote 8 Although the Commission did not impose common-carrier obligations on CATV systems in its 1969 report, it did note that "the origination requirement will help ensure that origination facilities are available for use by others originating on leased channels." First Report and Order 209. Public access requirements were introduced in the Commission's Report and Order on Cable Television Service, although not directly under the heading of common-carrier service. See id., at 3277. [Footnote 9 Section 1 of the Act, 48 Stat. 1064, as amended, 47 U.S.C. 151, states: "For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the `Federal Communications Commission,' which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter." [Footnote 10 In so concluding, the Commission rejected the contention that a prohibition on CATV originations was "necessary to prevent potential fractionalization of the audience for broadcast services and a siphoning off of program material and advertising revenue now available to the broadcast service." First Report and Order 202. "[B]roadcasters and CATV originators . . .," the Commission reasoned, "stand on the same footing in acquiring the program material with which they compete." Id., at 203. Moreover, "a loss of audience or advertising revenue to a television station is not in itself a matter of moment to the public interest unless the result is a net loss of television service," ibid. - an impact that the Commission found had no support in the record and that, in any event, it [406 U.S. 649, 656] would undertake to prevent should the need arise. See id., at 203-204. See also Memorandum Opinion and Order 826 n. 3, 828-829. [Footnote 11 Section 303 (g), 48 Stat. 1082, 47 U.S.C. 303, states that "[e]xcept as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall" "(g) [s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest . . . ." [Footnote 12 Section 307 (b), 48 Stat. 1084, as amended, 47 U.S.C. 307 (b), states: "In considering applications for licenses [for the transmission of energy, communications, or signals by radio], and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same." [Footnote 13 The Commission added: "[I]n authorizing the receipt, forwarding, and delivery of broadcast signals, the Commission is in effect authorizing CATV to engage in radio communication, and may condition this authorization upon reasonable requirements governing activities which are closely related to such radio communication and facilities." First Report and Order 209 (citing, inter alia, [406 U.S. 649, 657] 301 of the Communications Act, 48 Stat. 1081, 47 U.S.C. 301 (generally requiring licenses for the use or operation of any apparatus for the interstate or foreign transmission of energy, communications, or signals by radio)). Since, as we hold, infra, the authority of the Commission recognized in Southwestern is sufficient to sustain the cablecasting requirement at issue here, we need not, and do not, pass upon the extent of the Commission's jurisdiction over CATV under 301. See, e. g., FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940); General Telephone Co. of Cal. v. FCC, 134 U.S. App. D.C. 116, 130-131, 413 F.2d 390, 404-405 (1969); Philadelphia Television Broadcasting Co. v. FCC, 123 U.S. App. D.C. 298, 300, 359 F.2d 282, 284 (1966): "In a statutory scheme in which Congress has given an agency various bases of jurisdiction and various tools with which to protect the public interest, the agency is entitled to some leeway in choosing which jurisdictional base and which regulatory tools will be most effective in advancing the Congressional objective." [Footnote 14 Although this holding was specifically limited to "existing cable television operators," the court's reasoning extended more broadly to all CATV systems, and, indeed, its judgment set aside the regulation in all its applications. See 441 F.2d, at 1328. Respondent also challenged other regulations, promulgated in the Commission's First Report and Order and Memorandum Opinion and Order, dealing with advertising, "equal time," "fairness," sponsorship identification, and per-program or per-channel charges on cablecasts. The Court of Appeals, however, did not "[pass] on the power of the FCC . . . to prescribe reasonable rules for such CATV operators who voluntarily choose to originate programs," id., at 1326, since respondent acknowledged that it did not want to cablecast and hence lacked standing to attack those rules. See id., at 1328. [Footnote 15 The court held, in addition, that the Commission may not require CATV operators "as a condition to [their] right to use . . . captured [broadcast] signals in their existing franchise operation to engage in the entirely new and different business of originating programs." Id., at 1327. This holding presents no separate question from the "reasonably ancillary" issue that need be considered here. See n. 22, infra. [Footnote 16 Concurring in the result in a similar vein, Judge Gibson concluded that although "the FCC has authority over CATV systems," "the order under review is confiscatory and hence arbitrary," 441 F.2d, at 1328, for the regulation "would be extremely burdensome and perhaps remove from the CATV field many entrepreneurs who do not have the resources, talent and ability to enter the broadcasting field." Id., at 1329. If this is to suggest that the regulation is invalid merely because it burdens CATV operators or may even force some of them out of business, the argument is plainly incorrect. See n. 31, infra. The question would still remain whether the Commission reasonably found on substantial evidence that the regulation on balance would promote policy objectives committed to its jurisdiction under the Communications Act, which, for the reasons given infra, we hold that it did. [Footnote 17 Southwestern reviewed, but did not specifically pass upon the validity of, the regulations. See 392 U.S., at 167 . Their validity was, however, subsequently and correctly upheld by courts of appeals as within the guidelines of that decision. See, e. g., Black Hills Video Corp. v. FCC, 399 F.2d 65 (CA8 1968). [Footnote 18 Sections 3 (a), (b), 48 Stat. 1065, 47 U.S.C. 153 (a), (b), define these terms to mean "the transmission" "of writing, signs, signals, pictures, and sounds of all kinds," whether by cable or radio, "including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission." [Footnote 19 "Nor can we doubt that CATV systems are engaged in interstate communication, even where . . . the intercepted signals emanate [406 U.S. 649, 660] from stations located within the same State in which the CATV system operates. We may take notice that television broadcasting consists in very large part of programming devised for, and distributed to, national audiences; [CATV operators] thus are ordinarily employed in the simultaneous retransmission of communications that have very often originated in other States. The stream of communication is essentially uninterrupted and properly indivisible. To categorize [CATV] activities as intrastate would disregard the character of the television industry, and serve merely to prevent the national regulation that `is not only appropriate but essential to the efficient use of radio facilities.' Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 279 ." 392 U.S., at 168 -169. [Footnote 20 See n. 12, supra. See also 303 (f), (h), 48 Stat. 1082, 47 U.S.C. 303 (f), (h) (authorizing the Commission to prevent interference among stations and to establish areas to be served by them respectively). "In particular, the Commission feared that CATV might . . . significantly magnify the characteristically serious financial difficulties of UHF and educational television broadcasters." 392 U.S., at 175 -176. [Footnote 21 This, however, is contested by the State of Illinois as amicus curiae. It is, nevertheless, clear that cablecasts constitute communication by wire (or radio if microwave transmission is involved), as well as interstate communication if the transmission itself has moved interstate, as the Commission has authorized and encouraged. See First Report and Order 207-208 (regional and national interconnections) and n. 6, supra. The capacity for interstate nonbroadcast programing may in itself be sufficient to bring cablecasts within the compass of 2 (a). In Southwestern we declined to carve CATV broadcast transmissions, for the purpose of determining the extent of the Commission's regulatory authority, into interstate and intrastate components. See n. 19, supra. This result was justified by the extent of interstate broadcast programing, the interdependencies between the two components, and the need to preserve the "`unified and comprehensive regulatory system [406 U.S. 649, 663] for the [broadcasting] industry.'" 392 U.S., at 168 (quoting FCC v. Pottsville Broadcasting Co., n. 13, supra, at 137). A similar rationale may apply here, despite the lesser "interstate content" of cablecasts at present. But we need not now decide that question because, in any event, CATV operators have, by virtue of their carriage of broadcast signals, necessarily subjected themselves to the Commission's comprehensive jurisdiction. As MR. CHIEF JUSTICE (then Judge) BURGER has stated in a related context: "The Petitioners [telephone companies providing CATV channel distribution facilities] have, by choice, inserted themselves as links in this indivisible stream and have become an integral part of interstate broadcast transmission. They cannot have the economic benefits of such carriage as they perform and be free of the necessarily pervasive jurisdiction of the Commission." General Telephone Co. of Cal. v. FCC, n. 13, supra, at 127, 413 F.2d, at 401. The devotion of CATV systems to broadcast transmission - together with the interdependencies between that service and cablecasts, and the necessity for unified regulation - plainly suffices to bring cablecasts within the Commission's 2 (a) jurisdiction. See generally Barnett, State, Federal, and Local Regulation of Cable Television, 47 Notre Dame Law. 685, 721-723, 726-734 (1972). [Footnote 22 Since "[t]he function of CATV systems has little in common with the function of broadcasters," Fortnightly Corp. v. United Artists Television, 392 U.S. 390, 400 (1968), and since "[t]he fact that . . . property is devoted to a public use on certain terms does not justify . . . the imposition of restrictions that are not reasonably concerned with the proper conduct of the business according to the undertaking which the [owner] has expressly or impliedly assumed," Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 595 (1915), respondent also argues that CATV operators may not be required to cablecast as a condition for their customary service of carrying broadcast signals. This conclusion might follow only if the program-origination requirement is not reasonably ancillary to the Commission's jurisdiction over broadcasting. For, as we held in Southwestern, CATV operators are, at least to that [406 U.S. 649, 664] extent, engaged in a business subject to the Commission's regulation. Our holding on the "reasonably ancillary" issue is therefore dispositive of respondent's additional claim. See infra, at 669-670. It should be added that Fortnightly Corp. v. United Artists Television, supra, has no bearing on the "reasonably ancillary" question. That case merely held that CATV operators who re-transmit, but do not themselves originate copyrighted works do not "perform" them within the meaning of the Copyright Act, 61 Stat. 652, as amended, 17 U.S.C. 1, since "[e]ssentially, [that kind of] a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals . . . ." 392 U.S., at 399 . The analogy thus drawn between CATV operations and broadcast viewing for copyright purposes obviously does not dictate the extent of the Commission's authority to regulate CATV under the Communications Act. Indeed, Southwestern, handed down only a week before Fortnightly, expressly held that CATV systems are not merely receivers, but transmitters of interstate communication subject to the Commission's jurisdiction under that Act. See 392 U.S., at 168 . [Footnote 23 See also General Telephone Co. of Cal. v. FCC, n. 13, supra, at 124, 413 F.2d, at 398: "Over the years, the Commission has been required to meet new problems concerning CATV and as cases have reached the courts the scope of the Act has been defined, as Congress contemplated would be done, so as to avoid a continuing process of statutory revision. To do otherwise in regulating a dynamic public service function such as broadcasting would place an intolerable regulatory burden on the Congress - one which it sought to escape by delegating administrative functions to the Commission." [Footnote 24 The Commission elaborated: "CATV . . . has made a significant contribution to meeting the public demand for television service in areas too small in population [406 U.S. 649, 666] to support a local station or too remote in distance or isolated by terrain to receive regular or good off-the-air reception. It has also contributed to meeting the public's demand for good reception of multiple program choices, particularly the three full network services. In thus contributing to the realization of some of the most important goals which have governed our allocations planning, CATV has clearly served the public interest `in the larger and more effective use of radio.' And, even in the major market, where there may be no dearth of service . . ., CATV may . . . increase viewing opportunities, either by bringing in programing not otherwise available or, what is more likely, bringing in programing locally available but at times different from those presented by the local stations." Second Report and Order, 2 F. C. C. 2d 725, 781 (1966). See also id., at 745. [Footnote 25 This statement, made with reference only to the local carriage and non-duplication requirements, was no less true of the distant importation rule. See id., at 781-782. [Footnote 26 The regulation, for example, retained the provision of the Commission's earlier rule governing CATV microwave systems under which a local signal was not required to be carried "if (1) it substantially duplicates the network programing of a signal of a higher grade, and (2) carrying it would - because of limited channel capacity [406 U.S. 649, 667] - prevent the system from carrying a nonnetwork signal, which would contribute to the diversity of its service." First Report and Order, 38 F. C. C. 683, 717 (1965). See Second Report and Order, n. 24, supra, at 752-753. Moreover, CATV operators were warned that, in reviewing their discretionary choice of stations to carry among those of equal priority in certain circumstances, the Commission would "give particular consideration to any allegation that the station not carried is one with closer community ties." Id., at 755. In addition, operators were required to carry the signals of local satellite stations even if they also carried the signals of the satellites' parents; otherwise, "the satellite [might] lose audience for which it may be originating some local programing and [find] its incentive to originate programs [reduced]." Id., at 755-756. Finally, the Commission indicated that, in considering waivers of the regulation, it would "[accord] substantial weight" to such considerations as whether "the programing of stations located within the State would be of greater interest than those of nearer, but out-of-State stations [otherwise required to be given priority in carriage] - e. g., coverage of political elections and other public affairs of statewide concern." Id., at 753. [Footnote 27 As the Commission stated, "it has long been a basic tenet of national communications policy that `the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.' Associated Press v. United States, 326 U.S. 1, 20 ; Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 . . . ." First Report and Order 205. [Footnote 28 Respondent apparently does not dispute this, but contends instead that 1 and 303 (g) merely state objectives without granting power for their implementation. See Brief for Midwest Video Corp. 24. The cablecasting requirement, however, is founded on those provisions for the policies they state and not for any regulatory power they might confer. The regulatory power itself may be found, as in Southwestern, see supra, at 660, 662, in 47 U.S.C. 152 (a), 303 (r). [Footnote 29 Respondent asserts that "it is difficult to see how a mandatory [origination] requirement . . . can be said to aid the Commission in preserving the availability of broadcast stations to the several states and communities." Brief for Midwest Video Corp. 24. Respondent ignores that the provision of additional programing outlets by CATV necessarily affects the fairness, efficiency, and equity of the distribution of television services. We have no basis, it may be added, for overturning the Commission's judgment that the effect in this regard will be favorable. See supra, at 654-655 and n. 10. [Footnote 30 Commissioner Bartley, however, dissented on the ground that the regulation should apply only to systems with over 7,500 subscribers. Memorandum Opinion and Order 831. [Footnote 31 Nor is the regulation infirm for its failure to grant "grandfather" rights, see n. 7, supra, as the Commission warned would be the case in its Notice of Proposed Rulemaking and Notice of [406 U.S. 649, 674] Inquiry, 15 F. C. C. 2d 417, 424 (1968). See, e. g., Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 282 (1933) ("the power of Congress in the regulation of interstate commerce is not fettered by the necessity of maintaining existing arrangements which would conflict with the execution of its policy"). Judge Tuttle has elaborated, General Telephone Co. of Southwest v. United States, 449 F.2d 846, 863-864 (CA5 1971): "In a complex and dynamic industry such as the communications field, it cannot be expected that the agency charged with its regulation will have perfect clairvoyance. Indeed as Justice Cardozo once said, `Hardship must at times result from postponement of the rule of action till a time when action is complete. It is one of the consequences of the limitations of the human intellect and of the denial to legislators and judges of infinite prevision.' Cardozo, The Nature of the Judicial Process 145 (1921). The Commission, thus, must be afforded some leeway in developing policies and rules to fit the exigencies of the burgeoning CATV industry. Where the on-rushing course of events [has] outpaced the regulatory process, the Commission should be enabled to remedy the [problem] . . . by retroactive adjustments, provided they are reasonable. . . . "Admittedly the rule here at issue has an effect on activities embarked upon prior to the issuance of the Commission's Final Order and Report. Nonetheless the announcement of a new policy will inevitably have retroactive consequences. . . . The property of regulated industries is held subject to such limitations as may reasonably be imposed upon it in the public interest and the courts have frequently recognized that new rules may abolish or modify pre-existing interests." With regard to federal infringement of franchise rights, see generally Barnett, n. 21, supra, at 703-705 and n. 116. MR. CHIEF JUSTICE BURGER, concurring in the result. This case presents questions of extraordinary difficulty and sensitivity in the communications field, as the opinions of the divided Court of Appeals and our own divisions reflect. As MR. JUSTICE BRENNAN has noted, Congress could not anticipate the advent of CATV when it enacted the regulatory scheme nearly 40 years ago. Yet that statutory scheme plainly anticipated the need for comprehensive regulation as pervasive as the reach of the instrumentalities of broadcasting. In the four decades spanning the life of the Communications Act, the courts have consistently construed the Act as granting pervasive jurisdiction to the Commission to meet the expansion and development of broadcasting. That approach was broad enough to embrace the advent of CATV, as indicated in the plurality opinion. CATV is dependent totally on broadcast signals and is a significant link in the system as a whole and therefore must be seen as within the jurisdiction of the Act. Concededly, the Communications Act did not explicitly contemplate either CATV or the jurisdiction the Commission has now asserted. However, Congress was well aware in the 1930's that broadcasting was a dynamic instrumentality, that its future could not be predicted, that scientific developments would inevitably enlarge the role and scope of broadcasting, and that, in consequence, [406 U.S. 649, 676] regulatory schemes must be flexible and virtually open-ended. Candor requires acknowledgment, for me at least, that the Commission's position strains the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts. The almost explosive development of CATV suggests the need of a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress and not left entirely to the Commission and the courts. I agree with the plurality's rejection of any meaningful analogy between requiring CATV operators to develop programming and the concept of commandeering someone to engage in broadcasting. Those who exploit the existing broadcast signals for private commercial surface transmission by CATV - to which they make no contribution - are not exactly strangers to the stream of broadcasting. The essence of the matter is that when they interrupt the signal and put it to their own use for profit, they take on burdens, one of which is regulation by the Commission. I am not fully persuaded that the Commission has made the correct decision in this case and the thoughtful opinions in the Court of Appeals and the dissenting opinion here reflect some of my reservations. But the scope of our review is limited and does not permit me to resolve this issue as perhaps I would were I a member of the Federal Communications Commission. That I might take a different position as a member of the Commission gives me no license to do so here. Congress has created its instrumentality to regulate broadcasting, has given it pervasive powers, and the Commission has generations of experience and "feel" for the problem. I therefore conclude that until Congress acts, the Commission should be allowed wide latitude and I therefore concur in the result reached by this Court. [406 U.S. 649, 677] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST concur, dissenting. The policies reflected in the plurality opinion may be wise ones. But whether CATV systems should be required to originate programs is a decision that we certainly are not competent to make and in my judgment the Commission is not authorized to make. Congress is the agency to make the decision and Congress has not acted. CATV captures TV and radio signals, converts the signals, and carries them by microwave relay transmission or by coaxial cables into communities unable to receive the signals directly. In United States v. Southwestern Cable Co., 392 U.S. 157 , we upheld the power of the Commission to regulate the transmission of signals. As we said in that case: "CATV systems perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae. As the number and size of CATV systems have increased, their principal function has more frequently become the importation of distant signals." Id., at 163. CATV evolved after the Communications Act of 1934, 48 Stat. 1064, was passed. But we held that the reach of the Act, which extends "to all interstate and foreign communication by wire or radio," 47 U.S.C. 152 (a), was not limited to the precise methods of communication then known. 392 U.S., at 173 . Compulsory origination of programs is, however, a far cry from the regulation of communications approved in [406 U.S. 649, 678] Southwestern Cable. Origination requires new investment and new and different equipment, and an entirely different cast of personnel. 1 See 20 F. C. C. 2d 201, 210-211. We marked the difference between communication and origination in Fortnightly Corp. v. United Artists Television, 392 U.S. 390 , and made clear how foreign the origination of programs is to CATV's traditional transmission of signals. In that case, CATV was sought to be held liable for infringement of copyrights of movies licensed to broadcasters and carried by CATV. We held CATV not liable, saying: "Essentially, a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals; it provides a well-located antenna with an efficient connection to the viewer's television set. It is true that a CATV system plays an `active' role in making reception possible in a given area, but so do ordinary television sets and antennas. CATV equipment is powerful and sophisticated, but the basic function the equipment serves is little different from that served by the equipment generally furnished by a television viewer. If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be `performing' the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur. [406 U.S. 649, 679] "The function of CATV systems has little in common with the function of broadcasters. CATV systems do not in fact broadcast or rebroadcast. Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers. We hold that CATV operators, like viewers and unlike broadcasters, do not perform the programs that they receive and carry." Id., at 399-401. The Act forbids any person from operating a broadcast station without first obtaining a license from the Commission. 47 U.S.C. 301. Only qualified persons may obtain licenses and they must operate in the public interest. 47 U.S.C. 308-309. But nowhere in the Act is there the slightest suggestion that a person may be compelled to enter the broadcasting or cablecasting field. Rather, the Act extends "to all interstate and foreign communication by wire or radio . . . which originates and/or is received within the United States." 47 U.S.C. 152 (a) (emphasis added). When the Commission jurisdiction is so limited, it strains logic to hold that this jurisdiction may be expanded by requiring someone to "originate" or "receive." The Act, when dealing with broadcasters, speaks of "applicants," "applications for licenses," see 47 U.S.C. 307-308, and "whether the public interest, convenience, and necessity will be served by the granting of such application." 47 U.S.C. 309 (a). The emphasis in the Committee Reports was on "original applications" and "application for the renewal of a license." H.R. Rep. No. 1918, 73d Cong., 2d Sess., 48; S. Rep. No. 781, 73d Cong., 2d Sess., 7, 9. The idea that a carrier [406 U.S. 649, 680] or any other person can be drafted against his will to become a broadcaster is completely foreign to the history of the Act, as I read it. CATV is simply a carrier having no more control over the message content than does a telephone company. A carrier may, of course, seek a broadcaster's license; but there is not the slightest suggestion in the Act or in its history that a carrier can be bludgeoned into becoming a broadcaster while all other broadcasters live under more lenient rules. There is not the slightest clue in the Act that CATV carriers can be compulsorily converted into broadcasters. The plurality opinion performs the legerdemain by saying that the requirement of CATV origination is "reasonably ancillary" to the Commission's power to regulate television broadcasting. 2 That requires a brand-new amendment to the broadcasting provisions of the Act, which only the Congress can effect. The Commission is not given carte blanche to initiate broadcasting stations; it cannot force people into the business. It cannot say to one who applies for a broadcast outlet in city A that the need is greater in city B and he will be licensed there. The fact that the Commission has authority to regulate origination of programs if CATV decides to enter the field does not mean that it can compel CATV to originate programs. The fact that the Act directs the Commission to encourage the larger and more effective use of radio in the public interest, [406 U.S. 649, 681] 47 U.S.C. 303 (g), relates to the objectives of the Act and does not grant power to compel people to become broadcasters any more than it grants the power to compel broadcasters to become CATV operators. The upshot of today's decision is to make the Commission's authority over activities "ancillary" to its responsibilities greater than its authority over any broadcast licensee. Of course, the Commission can regulate a CATV that transmits broadcast signals. But to entrust the Commission with the power to force some, a few, or all CATV operators into the broadcast business is to give it a forbidding authority. Congress may decide to do so. But the step is a legislative measure so extreme that we should not find it interstitially authorized in the vague language of the Act. I would affirm the Court of Appeals. [Footnote 1 In light of the striking difference between origination and communication, the suggestion that "the regulation is no different from Commission rules governing the technological quality of CATV broadcast carriage," ante, at 669, appears misconceived. [Footnote 2 The separate opinion of THE CHIEF JUSTICE reaches the same result by saying "CATV is dependent totally on broadcast signals and is a significant link in the system as a whole and therefore must be seen as within the jurisdiction of the Act." Ante, at 675. The difficulty is that this analysis knows no limits short of complete domination of the field of communications by the Commission. This reasoning - divorced as it is from any specific statutory basis - could as well apply to the manufacturers of radio and television broadcasting and receiving equipment. [406 U.S. 649, 682]

liberal

other

economic_activity

1947-004-01

United States Supreme Court INTERNATIONAL SALT CO. V. U. S.(1947) No. 46 Argued: October 16, 1947Decided: November 10, 1947 Appeal from the District Court of the United States for the Southern District of New York. [ International Salt Co. v. U. S. 332 U.S. 392 (1947) ] [332 U.S. 392 , 393] Mr. Lemuel Skidmore, of New York City, for appellant. Mr. Robert L. Stern, of Washington, D.C., for appellee. Mr. Justice JACKSON delivered the opinion of the Court. The Government brought this civil action to enjoin the International Salt Company, appellant here, from carrying out provisions of the leases of its patented machines to the effect that lessees would use therein only International's salt products. The restriction is alleged to violate 1 of the Sherman Act,1 and 3 of the Clayton Act. 2 Upon appellant's answer and admissions of fact, the Government moved for summary judgment under Rule 56 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, upon the ground that no issue as to a material fact was presented and [332 U.S. 392 , 394] that, on the admissions, judgment followed as matter of law. Neither party submitted affidavits. Judgment was granted3 and appeal was taken directly to this Court. 4 It was established by pleadings or admissions that the International Salt Company is engaged in interstate commerce in salt, of which it is the country's largest producer for industrial uses. It also owns patents on two machines for utilization of salt products. One, the 'Lixator,' dissolves rock salt into a brine used in various industrial processes. The other, the 'Saltomat,' injects salt, in tablet form, into canned products during the canning process. The principal distribution of each of these machines is under leases which, among other things, require the lessees to purchase from appellant all unpatented salt and salt tablets consumed in the leased machines. Appellant had outstanding 790 leases of an equal number of 'Lixators,' all of which leases were on appellant's standard form containing the tying clause5 and other [332 U.S. 392 , 395] standard provisions; of 50 other leases which somewhat varied the terms, all but 4 contained the tying clause. It also had in effect 73 leases of 96 'Saltomats,' all containing the restrictive clause. 6 In 1944, appellant sold approximately 119,000 tons of salt, for about $500,000, for use in these machines. The appellant's patents confer a limited monopoly of the invention they reward. From them appellant derives a right to restrain others from making, vending or using the patented machines. But the patents confer no right [332 U.S. 392 , 396] to restrain use of, or trade in, unpatented salt. By contracting to close this market for salt against competition, International has engaged in a restraint of trade for which its patents afford no immunity from the anti- trust laws. Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 788 , 62 S. Ct. 402; Mercoid Corporation v. Mid-Continent Investment Co., 320 U.S. 661 ; Mercoid Corporation v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680 . Appellant contends, however, that summary judgment was unauthorized because it precluded trial of alleged issues of fact as to whether the restraint was unreasonable within the Sherman Act or substantially lessened competition or tended to create a monopoly in salt within the Clayton Act. We think the admitted facts left no genuine issue. Not only is price-fixing unreasonable, per se, United States v. Socony-Vacuum Oil Co., 310 U.S. 150 ; United States v. Trenton Potteries Co., 273 U.S. 392, 50 A.L.R. 989, but also it is unreasonable, per se, to foreclose competitors from any substantial market. Fashion Originators' Guild of America v. Federal Trade Commission, 2 Cir., 114 F.2d 80, affirmed, 312 U.S. 457, 668 . The volume of business affected by these contracts cannot be said to be insignificant or insubstantial and the tendency of the arrangement to accomplishment of monopoly seems obvious. Under the law, agreements are forbidden which 'tend to create a monopoly,' and it is immaterial that the tendency is a creeping one rather than one that proceeds at full gallop; nor does the law await arrival at the goal before condemning the direction of the movement. Appellant contends, however, that the 'Lixator' contracts are saved from unreasonableness and from the tendency to monopoly because they provided that if any competitor offered salt of equal grade at a lower price, the lessee should be free to buy in the open market, unless appellant would furnish the salt at an equal price; and [332 U.S. 392 , 397] the 'Saltomat' agreements provided that the lessee was entitled to the benefit of any general price reduction in lessor's salt tablets. The 'Lixator' provision does, of course, afford a measure of protection to the lessee, but it does not avoid the stifling effect of the agreement on competition. The appellant had at all times priority on the business at equal prices. A competitor would have to undercut appellant's price to have any hope of capturing the market, while appellant could hold that market by merely meeting competition. We do not think this concession relieves the contract of being a restraint of trade, albeit a less harsh one than would result in the absence of such a provision. The 'Saltomat' provision obviously has no effect of legal significance since it gives the lessee nothing more than a right to buy appellant's salt tablets at appellant's going price. All purchases must in any event be of appellant's product. Appellant also urges that since under the leases it remained under an obligation to repair and maintain the machines, it was reasonable to confine their use to its own salt because its high quality assured satisfactory functioning and low maintenance cost. The appellant's rock salt is alleged to have an average sodium chloride content of 98.2%. Rock salt of other producers, it is said, 'does not run consistent in sodium chloride content and in many instances runs as low as 95% of sodium chloride.' This greater percentage of insoluble impurities allegedly disturbs the functioning of the 'Lixator' machine. A somewhat similar claim is pleaded as to the 'Saltomat.' Of course, a lessor may impose on a lessee reasonable restrictions designed in good faith to minimize maintenance burdens and to assure satisfactory operation. We may assume, as matter of argument, that if the 'Lixator' functions best on rock salt of average sodium chloride content of 98.2%, the lessee might be required to use [332 U.S. 392 , 398] only salt meeting such a specification of quality. But it is not pleaded, nor is it argued, that the machine is allergic to salt of equal quality produced by any one except International. If others cannot produce salt equal to reasonable specifications for machine use, it is one thing; but it is admitted that, at times, at least, competitors do offer such a product. They are, however, shut out of the market by a provision that limits it, not in terms of quality, but in terms of a particular vendor. Rules for use of leased machinery must not be disguised restraints of free competition, though they may set reasonable standards which all suppliers must meet. Cf. International Business Machines Corporation v. United States, 298 U.S. 131 . Appellant urges other objections to the summary judgment. The tying clause has not been insisted upon in all leases, nor has it always been enforced when it was included. But these facts do not justify the general use of the restriction which has been admitted here. The appellant also strongly objects to the provisions of the sixth paragraph of the decree. 7 Appellant denies [332 U.S. 392 , 399] the necessity for such provision and it is true that the record discloses no threat to discriminate after the judgment of the Court is pronounced. It also suggests that we modify the judgment to accept a proposed alternative provision8 similar to one it says it urged upon the District Court, which rejected it. The record does not show what proceedings were had between rendering of the court's opinion and signing of the decree. The specific ground of objection raised by appellant to paragraph sixth is that International may find it necessary in some sections of the country to reduce the rental rates of the machines in order that its machines may compete with those of others. Of course, the Clayton Act itself9 permits one charged with price discrimination to show that he lowered his price in good faith to meet competition. Obviously, the District Court was not intending to prevent competition or to disable the appellant from meeting or offering it. The Government, too, says it would not oppose permitting a lower price to meet, in good faith, the equally low price of a competitor if the need arose. [332 U.S. 392 , 400] The short of the contention is that since the company never has threatened to violate any decree entered in this case to restrain future use of the illegal leases, it feels that the provision invalidating the objectionable leases should end the matter and that, as to any additional provisions, appellant is entitled to stand before the court in the same position as one who has never violated the law at all-that the injunction should go no farther than the violation or threat of violation. We cannot agree that the consequences of proved violations are so limited. The fact is established that the appellant already has wedged itself into this salt market by methods forbidden by law. The District Court is not obliged to assume, contrary to common experience, that a violator of the antitrust laws will relinquish the fruits of his violation more completely than the court requires him to do. And advantages already in hand may be held by methods more subtle and informed, and more difficult to prove, than those which, in the first place, win a market. When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed. The usual ways to the prohibited goal may be blocked against the proven transgressor and the burden put upon him to bring any proper claims for relief to the court's attention. And it is desirable, in the interests of the court and of both litigants, that the decree be as specific as possible, not only in the core of its relief, but in its outward limits, so that parties may known their duties and unintended contempts may not occur. The framing of decrees should take place in the District rather than in Appellate Courts. 10 They are invested [332 U.S. 392 , 401] with large discretion to model their judgments to fit the exigencies of the particular case. United States v. Crescent Amusement Co., 323 U.S. 173, 185 , 260; United States v. National Lead Co., 332 U.S. 319 . In an equity suit, the end to be served is not punishment of past transgression, nor is it merely to end specific illegal practices. A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants' illegal restraints. If this decree accomplishes less than that, the Government has won a lawsuit and lost a cause. The District Court has retained jurisdiction, by the terms of its judgment, for the purpose of 'enabling any of the parties to apply to the court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of the judgment' and 'for the amendment, modification or termination of any of its provisions. * * *' We think it would not be good judicial administration to strike paragraph VI from the judgment to meet a hypothetical situation when the District Court has purposely left the way open to remedy any such situations if and when the need arises. The factual basis of the claim for modification should appear in evidentiary form before the District Court rather than in the argumentative form in which it is before us. Nor are we impressed that this will require a multitude of separate applications. Once the concrete problem is before the District Court it will no doubt be able to fashion a provision that will avoid repetitious applications which would be as vexatious to the Court as to the litigants. We leave the appellant to proper appli- [332 U.S. 392 , 402] cation to the court below and deny the relief here, upon the present state of the record, without prejudice. Judgment affirmed. Mr. Justice FRANKFURTER, whom Mr. Justice REED and Mr. Justice BURTON, join, dissenting in part. Agreeing wholeheartedly with the Court's opinion on the main issue, I am left unpersuaded by its justification for retaining Paragraph VI1 in the judgment. [332 U.S. 392 , 403] Inasmuch as the holder of patents on machines is not obliged to dispose of them to all comers or to do so at a uniform price, Paragraph VI in and of itself undoubtedly deprives appellant of a legal right. It is not merely a theoretical right. Practical considerations may make it important for appellant to act upon its legal right not to have a uniform price for all its customers. It was conceded at the bar that competition may require this. No doubt, when a court condemns practices as violative of the Sherman Law and the Clayton Act, it has the duty so to fashion its decree as to put an effective stop to that which is condemned. But the law also respects the wisdom of not burning even part of a house in order to roast a pig. Ordinarily, therefore, when acts are found to have been done in violation of antitrust legislation, restraint of such acts in the future is the adequate relief. See New York, New Haven & Hartford R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 404 , 282; Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 77 , 522, 34 L.R.A.,N.S. 834, Ann.Cas.1912D, 734; National Labor Relations Board v. Express Publishing Company, 312 U.S. 426 , 435-437, 699, 700. Reflecting the dictates of fairness, equity does not put under ban that which is intrinsically legitimate unless for all practical purposes it is tied with the illegitimate, or the circumstances of the case makes it reasonable to assume that pursuit of what is legitimate would be a cover for doing what is forbidden. The Government argues, in effect, that to compel appellant to observe uniformity of price for its machines removes any temptation for more favorable treatment of a customer who buys its salt. But that is precisely the aim of the main decree-it prohibits extension of the patent for the machines by requiring as a condition of its acquisition the purchase of non-patented salt. The presupposition of Paragraph VI is that the appellant will disobey that which the court explicitly forbids, so that the with- [332 U.S. 392 , 404] drawal of an otherwise legal right to fix the purchase price of patented machines is employed as a precautionary screw to hold the appellant down from disobeying the court's decree. Surely a court of equity ought not to add to its prohibition of the illicit a prohibition of the licit unless the two are practically intertwined or there is some ground for believing that the licit will surreptitiously be misused in order to accomplish the illicit. There should be no such prohibition merely as a re-enforcement of the appropriate presupposition that a litigant, not shown to have ben recalcitrant or underhanded, will obey the court's decree. If he does, the power of contempt is there to enforce obedience. It is suggested that if the presupposition of obedience is to be entertained it is unnecessary to enjoin even illegal conduct. But, surely, it is one thing to decree prohibition of conduct found to be illegal and a wholly different thing to add thereto the prohibition of that which is otherwise legal on the theory that thereby any temptation to persist in the forbidden illegality is removed. Upon the record before us there is nothing to suggest that the appellant is likely to disobey the decree not only of the District Court against a continuance of illegal leases, but what in effect, upon affirmance, becomes a decree of this Court. It must be remembered that the Government saw fit to move for judgment on the pleadings. It thereby raised a pure legal question as to the validity of the leases on their face. The Government chose not to try to lay bare, as is often done in Sherman Law cases, fair and unfair practices inextricably blended. In such a situation the lawful has to fall with the unlawful. Having invited judgment on the bare bones of the pleadings which merely raise the validity of the tying clauses, the Government is not entitled to remedies which go beyond the justification of the pleadings. The Gov- [332 U.S. 392 , 405] ernment ought not to have it both ways. The Government is not entitled to a provision in the decree which can be justified only on some indication in the record, of which here there is none, that appellant's past shows a devious temper which needs to be hobbled by withdrawing a conceded legal right. In comparable situations, where orders of the Federal Trade Commission come here for review, this Court has sought to protect otherwise legitimate rights even where a business has indulged in unfair methods of competition. The Commission is not authorized to make its order needlessly destructive. The baby is not to be thrown out with the bath. See Federal Trade Commission v. Royal Milling Co., 288 U.S. 212 , and Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608 . Accordingly, if this were a review of an order of the Federal Trade Commission, I should remit the order for appropriate reconsideration by the Commission. Since this is a review of a lower federal court and the record presumably presents to us all that was before the District Court in support of Paragraph VI, we could dispose of the matter here. But the molding of decrees in Sherman Law cases is normally the business of district courts. They have a scope of discretion which should not unduly be cut off by a recasting of the decree on appeal here. (It is worth nothing that the availability of the Federal Trade Commission in the role of a master in chancery to help mold decrees in suits under the anti- trust statutes apparently does not apply to a suit like the present, where judgment was asked on the pleadings and no testimony was taken. See 7 of the Federal Trade Commission Act, 38 Stat. 717, 722, 15 U.S.C. 47, 15 U. S.C.A. 47.) And so I would remand the case to the District Court. It has been suggested that Paragraph VI is merely a roundabout way of saying that the appellant should not discriminate in the price of its [332 U.S. 392 , 406] patented machines in favor of a purchaser of its salt. If such was the intention of Paragraph VI, the District Court will want to convey such meaning less ambiguously. 2 As the paragraph stands, I do not see how any lawyer would advise that the appellant could vary its prices among customers in different localities for a legitimate reason without each time going to the District Court for a modification of the decree. That is not a burden which, on this record, ought to be placed on the appellant. The undue sting of Paragraph VI is not saved by the fact that it is 'specific.' Of course it is in the interest of courts and of litigants that the terms of a decree be as specific as possible. But the desideratum of explicitness does not dispense with the requirement that remedies be appropriate to the condemned illegality. It does not draw the sting of undue prohibition of lawful conduct to make the prohibition specific. Footnotes [Footnote 1 26 Stat. 209, 1, 15 U.S.C. 1, 15 U.S.C.A. 1. [Footnote 2 38 Stat. 730, 3, 15 U.S.C. 14, 15 U.S.C.A. 14. [Footnote 3 6 F.R.D. 302. [Footnote 4 Probable jurisdiction noted April 28, 1947. [Footnote 5 'It is further mutually agreed that the said Lixate Process Dissolver shall be installed by and at the expense of said Lessee and shall be maintained and kept in repair during the term of this lease by and at the expense of said Lessee; that the said Lixate Process Dissolver shall be used for dissolving and converting into brine only those grades of rock salt purchased by the Lessee from the Lessor at prices and upon terms and conditions hereafter agreed upon, provided: 'If at any time during the term of this lease a general reduction in price of grade of salt suitable for use in the said Lixate Process Dissolver shall be made, said Lessee shall give said Lessor an opportunity to provide a competitive grade of salt at any such competitive price quoted, and in case said Lessor shall fail or be unable to do so, said Lessee, upon continued payments of the rental herein agreed upon, shall have the privilege of continued use of the said equipment with salt purchased in the open market, until such time as said Lessor shall furnish a suitable grade of salt at the said competitive price.' It further provides as follows: 'Should said Lessee fail to pay promptly the aforesaid rental, or shall at any time discontinue purchasing its requirement of salt from said Lessor, or otherwise breach any of the terms and conditions of this lease, said Lessor shall have the right, upon 30 days' written notice of intention to do so, to remove the said Lixate Process Dissolver from the possession of said Lessee.' [Footnote 6 'It is further mutually agreed that the said Salt Tablet Depositor( s) shall be installed and maintained in good condition during the term of this lease; that the said Salt Tablet Depositor(s) shall be used only in conjunction with Salt Tablets sold or manufactured by the Lessor, and that the Lessee shall purchase from the Lessor or its agent, Salt Tablets for use in the Salt Tablet Depositor(s) at prices and upon terms and conditions hereinafter agreed upon, Provided: If at any time during the term of this lease, a general reduction in Lessor's price of Salt Tablets suitable for use in the Depositor(s) shall be made, said Lessor shall provide said Lessee with Salt Tablets at a like price.' The lease further provides: '* * * should Lessee fail to pay promptly the aforesaid rental, or at any time discontinue purchasing its requirements of Salt Tablets for said Salt Tablet Depositor(s) from said Lessor, or its agent, or otherwise breach any of the terms and conditions of this lease, said Lessor shall have the right, upon 10 days' written notice of intention to do so, to remove the said Salt Tablet Depositor(s) from the premises and/or possession of said Lessee.' [Footnote 7 Defendant International Salt is directed to offer to lease or sell or license the use of the Lixator or Saltomat machines, or any other machine which is then being or about to be offered or shall have been offered by such defendant in the United States embodying inventions covered by any of the patents referred to in paragraph II hereof, to any applicant on non-discriminatory terms and conditions; provided that (a) A machine or machines is or are available for such purposes and (b) Defendant shall not be required to make such offer unless it is offering, about to offer, or has offered such machines for lease or sale or license within the United States and at any time the defendant may discontinue the business of renting or selling or licensing the use of such machines; and (c) Such sale or lease or license is not required to be made without cash payment or security to any person not having proper credit rating, and (d) The rental or sale price or license royalty may differ as to different types and sizes of machines and from time to time so long as the rental or sale price or royalty at any one time is uniform as to each size or type of machine. The terms of this paragraph shall apply to all future contracts and modifications of existing contracts. Any person with whom defendant International Salt now has a lease agreement relating to the Lixator or Saltomat machines may elect to retain his rights under the existing lease or to enter into a lease or sale or license contract with defendant International Salt in accordance with the provisions of this paragraph. [Footnote 8 Defendant would be enjoined 'from refusing to sell, lease or license the use of any such machine to any person, firm or corporation, or from discriminating in the terms of any contract of sale, lease or license of any such machine with any person, firm or corporation, against the prospective buyer, lessee or licensee on the ground that he has used or dealt in, or intends or proposes to use or deal in, salt not manufactured or sold by the defendant International Salt.' [Footnote 9 38 Stat. 730, 49 Stat. 1526, 15 U.S.C. 13(b), 15 U.S.C.A. 13(b). [Footnote 10 That court is authorized, but not required, to call upon the Federal Trade Commission to assist in framing decrees in antitrust cases. 7, Federal Trade Commission Act, 38 Stat. 722, 15 U.S.C.A. 47. This would seem unnecessary if Congress intended a simple prohibition of the particular practice proved before the court. It indicates the Congress has intended decrees to deal with the future economic condition of the enterprise as well as past violations. [Footnote 1 VI. Defendant International Salt is directed to offer to lease or sell or license the use of the Lixator or Saltomat Machines, or any other machine which is then being or about to be offered or shall have been offered by such defendant in the United States embodying inventions covered by any of the patents referred to in paragraph II hereof, to any applicant on non-discriminatory terms and conditions; provided that (a) A machine or machines is or are available for such purposes and (b) Defendant shall not be required to make such offer unless it is offering, about to offer, or has offered such machines for lease or sale or license within the United States and at any time the defendant may discontinue the business of renting or selling or licensing the use of such machines; and (c) Such sale or lease or license is not required to be made without cash payment or security to any person not having proper credit rating, and (d) The rental or sale price or license royalty may differ as to different types and sizes of machines and from time to time so long as the rental or sale price or royalty at any one time is uniform as to each size or type of machine. The terms of this paragraph shall apply to all future contracts and modifications of existing contracts. Any person with whom defendant International Salt now has a lease agreement relating to the Lixator or Saltomat machines may elect to retain his rights under the existing lease or to enter into a lease or sale or license contract with defendant International Salt in accordance with the provisions of this paragraph. [Footnote 2 See the clause which the appellant proposed to the District Court, enjoining it 'from refusing to sell, lease or license the use of any such machine to any person, firm or corporation, or from discriminating in the terms of any contract of sale, lease or license of any such machine with any person, firm or corporation, against the prospective buyer, lessee or licensee on the ground that he has used or dealt in, or intends or proposes to use or deal in, salt not manufactured or sold by the defendant International Salt.'

liberal

public_entity

economic_activity

1962-059-01

United States Supreme Court DOUGLAS v. CALIFORNIA(1963) No. 34 Argued: April 17, 1962Decided: March 18, 1963 In a California State Court, petitioners were tried jointly, convicted of 13 felonies and sentenced to imprisonment. Exercising their only right to appeal as of right, they appealed to an intermediate Court of Appeals, and, being indigent, applied to it for appointment of counsel to assist them on appeal. In accordance with a state rule of criminal procedure, that Court made an ex parte examination of the record, determined that appointment of counsel for petitioners would not be "of advantage to the defendant or helpful to the appellate court" and denied appointment of counsel. Their appeal was heard without assistance of counsel and their convictions were affirmed. The State Supreme Court denied a discretionary review. Held: Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel in a state criminal case, there has been a discrimination between the rich and the poor which violates the Fourteenth Amendment. Pp. 353-358. 187 Cal. App. 2d 802, 10 Cal. Rptr. 188, judgment vacated and cause remanded. Marvin M. Mitchelson and Burton Marks reargued the cause for petitioners. With them on the briefs were A. L. Wirin, Fred Okrand and Nanette Dembitz. William E. James, Assistant Attorney General of California, and Jack E. Goertzen, Deputy Attorney General, argued the cause for respondent. With them on the briefs was Stanley Mosk, Attorney General. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioners, Bennie Will Meyes and William Douglas, were jointly tried and convicted in a California court on an information charging them with 13 felonies. A single [372 U.S. 353, 354] public defender was appointed to represent them. At the commencement of the trial, the defender moved for a continuance, stating that the case was very complicated, that he was not as prepared as he felt he should be because he was handling a different defense every day, and that there was a conflict of interest between the petitioners requiring the appointment of separate counsel for each of them. This motion was denied. Thereafter, petitioners dismissed the defender, claiming he was unprepared, and again renewed motions for separate counsel and for a continuance. These motions also were denied, and petitioners were ultimately convicted by a jury of all 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. Both were given prison terms. Both appealed as of right to the California District Court of Appeal. That court affirmed their convictions. 187 Cal. App. 2d 802, 10 Cal. Rptr. 188. Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing. 1 187 Cal. App. 2d, at 813, 10 Cal. Rptr., at 195. We granted certiorari. 368 U.S. 815 . Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents. In denying petitioners' requests, the California District Court of Appeal stated that it had "gone through" the record [372 U.S. 353, 355] and had come to the conclusion that "no good whatever could be served by appointment of counsel." 187 Cal. App. 2d 802, 812, 10 Cal. Rptr. 188, 195. The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make "an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. . . . After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court." People v. Hyde, 51 Cal. 2d 152, 154, 331 P.2d 42, 43. We agree, however, with Justice Traynor of the California Supreme Court, who said that the "[d]enial of counsel on appeal [to an indigent] would seem to be a discrimination at least as invidious as that condemned in Griffin v. Illinois . . . ." People v. Brown, 55 Cal. 2d 64, 71, 357 P.2d 1072, 1076 (concurring opinion). In Griffin v. Illinois, 351 U.S. 12 , we held that a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There, as in Draper v. Washington, post, p. 487, the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has." Griffin v. Illinois, supra, at p. 19. In spite of California's forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges [372 U.S. 353, 356] upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required. We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal. Const., Art. VI, 4c; Cal. Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an "invidious discrimination." Williamson v. Lee Optical Co., [372 U.S. 353, 357] 348 U.S. 483, 489 ; Griffin v. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U.S. 141 ; Goesaert v. Cleary, 335 U.S. 464 . But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor. When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U.S. 565 . The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and "representation in the role of an advocate is required." Ellis v. United States, 356 U.S. 674, 675 . 2 In California, however, once the court has "gone through" the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between "possibly good and obviously bad cases," but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking [372 U.S. 353, 358] that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. We vacate the judgment of the District Court of Appeal and remand the case to that court for further proceedings not inconsistent with this opinion. It is so ordered. Footnotes [Footnote 1 While the notation of a denial of hearing by the California Supreme Court indicates that only Meyes petitioned that Court for a hearing, and is silent as to Douglas' attempts at further review, the record shows that the petition for review was expressly filed on behalf of Douglas as well. Both Meyes and Douglas, therefore, have exhausted their state remedies and both cases are properly before us. 28 U.S.C. 1257 (3). [Footnote 2 "When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U.S. 438, 449 . MR. JUSTICE CLARK, dissenting. I adhere to my vote in Griffin v. Illinois, 351 U.S. 12 (1956), but, as I have always understood that case, it does not control here. It had to do with the State's obligation to furnish a record to an indigent on appeal. There we took pains to point out that the State was free to "find other means of affording adequate and effective appellate review to indigent defendants." Id., at 20. Here California has done just that in its procedure for furnishing attorneys for indigents on appeal. We all know that the overwhelming percentage of in forma pauperis appeals are frivolous. Statistics of this Court show that over 96% of the petitions filed here are of this variety. 1 California, in the light of a like experience, has provided that upon the filing of an application for the appointment of counsel the District Court of Appeal shall make "an independent investigation of the record [372 U.S. 353, 359] and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed." People v. Hyde, 51 Cal. 2d 152, 154, 331 P.2d 42, 43 (1958). California's courts did that here and after examining the record certified that such an appointment would be neither advantageous to the petitioners nor helpful to the court. It, therefore, refused to go through the useless gesture of appointing an attorney. In my view neither the Equal Protection Clause nor the Due Process Clause requires more. I cannot understand why the Court says that this procedure afforded petitioners "a meaningless ritual." To appoint an attorney would not only have been utter extravagance and a waste of the State's funds but as surely "meaningless" to petitioners. With this new fetish for indigency the Court piles an intolerable burden on the State's judicial machinery. Indeed, if the Court is correct it may be that we should first clean up our own house. We have afforded indigent litigants much less protection than has California. Last Term we received over 1,200 in forma pauperis applications in none of which had we appointed attorneys or required a record. Some were appeals of right. Still we denied the petitions or dismissed the appeals on the moving papers alone. At the same time we had hundreds of paid cases in which we permitted petitions or appeals to be filed with not only records but briefs by counsel, after which they were disposed of in due course. On the other hand, California furnishes the indigent a complete record and if counsel is requested requires its appellate courts either to (1) appoint counsel or (2) make an independent investigation of that record and determine whether it would be of advantage to the defendant or helpful to the court to have counsel appointed. Unlike Lane v. Brown, decided today, post, p. 477, decision in these matters is not placed in the unreviewable discretion [372 U.S. 353, 360] of the Public Defender or appointed counsel but is made by the appellate court itself. 2 California's concern for the rights of indigents is clearly revealed in People v. Hyde, supra. There, although the Public Defender had not undertaken the prosecution of the appeal, the District Court of Appeal nevertheless referred the application for counsel and the record to the Los Angeles Bar Association. One of its members reviewed these papers, after which he certified that no meritorious ground for appeal was disclosed. Despite this the California District Court of Appeal made its own independent examination of the record. There is an old adage which my good Mother used to quote to me, i. e., "People who live in glass houses had best not throw stones." I dissent. [Footnote 1 Statistics from the office of the Clerk of this Court reveal that in the 1961 Term only 38 of 1,093 in forma pauperis petitions for certiorari were granted (3.4%). Of 44 in forma pauperis appeals, all but one were summarily dismissed (2.3%). [Footnote 2 The crucial question here is, of course, the effectiveness of the appellate review which was unquestionably provided. In Lane v. Brown, post, p. 477, the unreviewable decision of the Public Defender precluded any appellate review under Indiana law. As to the fairness and effectiveness of the appellate review here as compared with Griffin v. Illinois, 351 U.S. 12 (1956), the State conceded the necessity of a transcript for adequate review of the alleged trial errors in that case. Id., at 16. Compare the statement of the District Court of Appeal in affirming here: "Further, the briefs filed by Meyes [which Douglas adopted] conform to the rules in all respects, are well written, present all possible points clearly and ably with abundant citation of pertinent authorities, and were no doubt prepared by one well versed in criminal law and procedure and in brief writing. There was no prejudicial error in not appointing counsel for defendants on the appeal." 187 Cal. App. 2d 802, 812, 10 Cal. Rptr. 188, 195. MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting. In holding that an indigent has an absolute right to appointed counsel on appeal of a state criminal conviction, the Court appears to rely both on the Equal Protection [372 U.S. 353, 361] Clause and on the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment, with obvious emphasis on "equal protection." In my view the Equal Protection Clause is not apposite, and its application to cases like the present one can lead only to mischievous results. This case should be judged solely under the Due Process Clause, and I do not believe that the California procedure violates that provision. EQUAL PROTECTION. To approach the present problem in terms of the Equal Protection Clause is, I submit, but to substitute resounding phrases for analysis. I dissented from this approach in Griffin v. Illinois, 351 U.S. 12, 29 , 34-36, 1 and I am constrained to dissent from the implicit extension of the equal protection approach here - to a case in which the State denies no one an appeal, but seeks only to keep within reasonable bounds the instances in which appellate counsel will be assigned to indigents. The States, of course, are prohibited by the Equal Protection Clause from discriminating between "rich" and "poor" as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely. Every financial exaction which the State imposes on a uniform basis is more easily satisfied by the well-to-do than by the indigent. Yet I take it that no one would dispute the constitutional power of the State to levy a [372 U.S. 353, 362] uniform sales tax, to charge tuition at a state university, to fix rates for the purchase of water from a municipal corporation, to impose a standard fine for criminal violations, or to establish minimum bail for various categories of offenses. Nor could it be contended that the State may not classify as crimes acts which the poor are more likely to commit than are the rich. And surely, there would be no basis for attacking a state law which provided benefits for the needy simply because those benefits fell short of the goods or services that others could purchase for themselves. Laws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States "an affirmative duty to lift the handicaps flowing from differences in economic circumstances." 2 To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society. The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford. Thus it should be apparent that the present case, as with Draper v. Washington, post, p. 487, and Lane v. Brown, post, p. 477, both decided today, is not one properly regarded as arising under this clause. California does not discriminate between rich and poor in having a uniform policy permitting everyone to appeal and to retain counsel, and in having a separate rule dealing only with the standards for the appointment of counsel for those unable to retain their own attorneys. The sole classification established by this rule is between those cases that are believed to have merit and those regarded as frivolous. And, of course, no matter how far the state rule might go [372 U.S. 353, 363] in providing counsel for indigents, it could never be expected to satisfy an affirmative duty - if one existed - to place the poor on the same level as those who can afford the best legal talent available. Parenthetically, it should be noted that if the present problem may be viewed as one of equal protection, so may the question of the right to appointed counsel at trial, and the Court's analysis of that right in Gideon v. Wainwright, ante, p. 335, decided today, is wholly unnecessary. The short way to dispose of Gideon v. Wainwright, in other words, would be simply to say that the State deprives the indigent of equal protection whenever it fails to furnish him with legal services, and perhaps with other services as well, equivalent to those that the affluent defendant can obtain. The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause. Of course, in considering this question, it must not be lost sight of that the State's responsibility under the Due Process Clause is to provide justice for all. Refusal to furnish criminal indigents with some things that others can afford may fall short of constitutional standards of fairness. The problem before us is whether this is such a case. DUE PROCESS. It bears reiteration that California's procedure of screening its criminal appeals to determine whether or not counsel ought to be appointed denies to no one the right to appeal. This is not a case, like Burns v. Ohio, 360 U.S. 252 , in which a court rule or statute bars all consideration of the merits of an appeal unless docketing fees are prepaid. Nor is it like Griffin v. Illinois, supra, in which the State conceded that "petitioners needed a transcript [372 U.S. 353, 364] in order to get adequate appellate review of their alleged trial errors." 351 U.S., at 16 . Here it is this Court which finds, notwithstanding California's assertions to the contrary, that as a matter of constitutional law "adequate appellate review" is impossible unless counsel has been appointed. And while Griffin left it open to the States to devise "other means of affording adequate and effective appellate review to indigent defendants," 351 U.S., at 20 , the present decision establishes what is seemingly an absolute rule under which the State may be left without any means of protecting itself against the employment of counsel in frivolous appeals. 3 It was precisely towards providing adequate appellate review - as part of what the Court concedes to be "California's forward treatment of indigents" - that the State formulated the system which the Court today strikes down. That system requires the state appellate courts to appoint counsel on appeal for any indigent defendant except "if in their judgment such appointment would be of no value to either the defendant or the court." People v. Hyde, 51 Cal. 2d 152, 154, 331 P.2d 42, 43. This judgment can be reached only after an independent investigation of the trial record by the reviewing court. And even if counsel is denied, a full appeal on the merits is accorded to the indigent appellant, together with a statement of the reasons why counsel was not assigned. There is nothing in the present case, or in any other case that has been cited to us, to indicate that the system has resulted in injustice. Quite the contrary, there is every reason to believe that California appellate courts have made a painstaking effort to apply the rule fairly and to live up to the State Supreme Court's mandate. See, e. g., the discussion [372 U.S. 353, 365] in People v. Vigil, 189 Cal. App. 2d 478, 480-482, 11 Cal. Rptr. 319, 321-322. We have today held that in a case such as the one before us, there is an absolute right to the services of counsel at trial. Gideon v. Wainwright, ante, p. 335. But the appellate procedures involved here stand on an entirely different constitutional footing. First, appellate review is in itself not required by the Fourteenth Amendment, McKane v. Durston, 153 U.S. 684 ; see Griffin v. Illinois, supra, at 18, and thus the question presented is the narrow one whether the State's rules with respect to the appointment of counsel are so arbitrary or unreasonable, in the context of the particular appellate procedure that it has established, as to require their invalidation. Second, the kinds of questions that may arise on appeal are circumscribed by the record of the proceedings that led to the conviction; they do not encompass the large variety of tactical and strategic problems that must be resolved at the trial. Third, as California applies its rule, the indigent appellant receives the benefit of expert and conscientious legal appraisal of the merits of his case on the basis of the trial record, and whether or not he is assigned counsel, is guaranteed full consideration of his appeal. It would be painting with too broad a brush to conclude that under these circumstances an appeal is just like a trial. What the Court finds constitutionally offensive in California's procedure bears a striking resemblance to the rules of this Court and many state courts of last resort on petitions for certiorari or for leave to appeal filed by indigent defendants pro se. Under the practice of this Court, only if it appears from the petition for certiorari that a case merits review is leave to proceed in forma pauperis granted, the case transferred to the Appellate Docket, and counsel appointed. Since our review is generally discretionary, and since we are often not even given the benefit of a record in the proceedings below, the disadvantages [372 U.S. 353, 366] to the indigent petitioner might be regarded as more substantial than in California. But as conscientiously committed as this Court is to the great principle of "Equal Justice Under Law," it has never deemed itself constitutionally required to appoint counsel to assist in the preparation of each of the more than 1,000 pro se petitions for certiorari currently being filed each Term. We should know from our own experience that appellate courts generally go out of their way to give fair consideration to those who are unrepresented. The Court distinguishes our review from the present case on the grounds that the California rule relates to "the first appeal, granted as a matter of right." Ante, p. 356. But I fail to see the significance of this difference. Surely, it cannot be contended that the requirements of fair procedure are exhausted once an indigent has been given one appellate review. Cf. Lane v. Brown, post, p. 477. Nor can it well be suggested that having appointed counsel is more necessary to the fair administration of justice in an initial appeal taken as a matter of right, which the reviewing court on the full record has already determined to be frivolous, than in a petition asking a higher appellate court to exercise its discretion to consider what may be a substantial constitutional claim. Further, there is no indication in this record, or in the state cases cited to us, that the California procedure differs in any material respect from the screening of appeals in federal criminal cases that is prescribed by 28 U.S.C. 1915. As recently as last Term, in Coppedge v. United States, 369 U.S. 438 , we had occasion to pass upon the application of this statute. Although that decision established stringent restrictions on the power of federal courts to reject an application for leave to appeal in forma pauperis, it nonetheless recognized that the federal courts could prevent the needless expenditure of public funds by summarily disposing of frivolous appeals. Indeed in some [372 U.S. 353, 367] respects, California has outdone the federal system, since it provides a transcript and an appeal on the merits in all cases, no matter how frivolous. I cannot agree that the Constitution prohibits a State, in seeking to redress economic imbalances at its bar of justice and to provide indigents with full review, from taking reasonable steps to guard against needless expense. This is all that California has done. Accordingly, I would affirm the state judgment. 4 [Footnote 1 The majority in Griffin appeared to rely, as here, on a blend of the Equal Protection and Due Process Clauses in arriving at the result. So far as the result in that case rested on due process grounds, I fully accept the authority of Griffin. [Footnote 2 Griffin v. Illinois, supra, at 34 (dissenting opinion of this writer). [Footnote 3 California law provides that if counsel is appointed on appeal, the court shall fix a reasonable fee to be paid by the State. California Penal Code 1241. It is of course clear that this Court may not require the State to compel its attorneys to donate their services. [Footnote 4 Petitioners also contend that they were denied the effective assistance of counsel at trial. This claim, in my view, is without merit. A reading of the record leaves little doubt that petitioners' dismissal of their appointed counsel and their efforts to obtain a continuance were designed to delay the proceedings and, in all likelihood, to manufacture an appealable issue. Moreover, the trial court acted well within constitutional bounds in denying the claim that there was a conflict of interest between Douglas and Meyes that required a separate appointed attorney for each. [372 U.S. 353, 368]

liberal

public_entity

civil_rights

1981-045-01

United States Supreme Court NEW ENGLAND POWER CO. v. NEW HAMPSHIRE(1982) No. 80-1208 Argued: December 7, 1981Decided: February 24, 1982 Appellant New England Power Co., a public utility generating and transmitting electricity at wholesale, sells most of its power in Massachusetts and Rhode Island; its wholesale customers service less than 6% of New Hampshire's population. New England Power owns and operates hydroelectric units, some of which are located in New Hampshire. The units are licensed by the Federal Energy Regulatory Commission (FERC) pursuant to the Federal Power Act. A New Hampshire statute, enacted in 1913, prohibits a corporation engaged in the generation of electrical energy by water power from transmitting such energy out of the State unless approval is first obtained from the New Hampshire Public Utilities Commission. The statute empowers that Commission to prohibit the exportation of such energy when it determines that the energy "is reasonably required for use within this state and that the public good requires that it be delivered for such use." Since 1926, New England Power or its predecessor periodically obtained the Commission's approval to transmit electricity produced in New Hampshire to points outside the State. However, in 1980, after an investigation and hearings, the Commission withdrew such approval and ordered New England Power to arrange to sell the previously exported hydroelectric energy within New Hampshire. New England Power, the Commonwealth of Massachusetts, and the Attorney General of Rhode Island appealed the Commission's order to the New Hampshire Supreme Court, contending that the order was pre-empted by the Federal Power Act and imposed impermissible burdens on interstate commerce. The court rejected those arguments, holding, inter alia, that the "saving clause" of 201(b) of the Federal Power Act granted New Hampshire authority to restrict the interstate transportation of hydroelectric power generated within the State. Section 201(b), which was enacted in 1935, provides that the Act's provisions delegating exclusive authority to the FERC to regulate the transmission and sale at wholesale of electric energy in [455 U.S. 331, 332] interstate commerce "shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line." Held: New Hampshire has sought to restrict the flow of privately owned and produced electricity in interstate commerce in a manner inconsistent with the Commerce Clause. Section 201(b) of the Federal Power Act does not provide an affirmative grant of authority to the State to do so. Pp. 338-344. (a) Absent authorizing federal legislation, the Commerce Clause precludes a state from mandating that its residents be given a preferred right of access over out-of-state consumers to natural resources located within its borders or to the products derived therefrom. The New Hampshire Commission's order is precisely the sort of protectionist regulation that the Commerce Clause declares off limits to the states. Moreover, the Commission's "exportation ban" places direct and substantial burdens on transactions in interstate commerce that cannot be squared with the Commerce Clause when they serve only to advance simple economic protectionism. Pp. 338-340. (b) In 201(b), Congress did no more than leave standing whatever valid state laws then existed relating to the exportation of hydroelectric energy. Nothing in the legislative history or language of the statute evinces a congressional intent to alter the limits of state power otherwise imposed by the Commerce Clause, or to modify this Court's earlier holdings concerning the limits of state authority to restrain interstate trade. When Congress has not expressly stated its intent to sustain state legislation from attack under the Commerce Clause, this Court has no authority to rewrite its legislation based on mere speculation as to what Congress probably had in mind. Pp. 340-343. 120 N. H. 866, 424 A. 2d 807, reversed and remanded. BURGER, C. J., delivered the opinion for a unanimous Court. [Footnote * Together with No. 80-1471, Massachusetts et al. v. New Hampshire et al.; and No. 80-1610, Roberts, Attorney General of Rhode Island, et al. v. New Hampshire et al., also on appeal from the same court. Samuel Huntington argued the cause for appellant in No. 80-1208. With him on the briefs were John F. Sherman III, Edward Berlin, Carmen D. Legato, and J. Phillip Jordan. Donald K. Stern, Assistant Attorney General of Massachusetts, argued the cause for appellants in Nos. 80-1471 and 80-1610. With him on the brief for appellants in No. 80-1471 were Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Joan C. Stoddard, [455 U.S. 331, 333] E. Michael Sloman, and Alan Sherr, Assistant Attorneys General. Dennis J. Roberts II, Attorney General of Rhode Island, and John R. McDermott filed a brief for appellants in No. 80-1610. Gregory H. Smith, Attorney General of New Hampshire, argued the cause for appellees. With him on the brief was Peter C. Scott, Assistant Attorney General.Fn Fn [455 U.S. 331, 333] Briefs of amici curiae urging reversal were filed by Acting Solicitor General Wallace, Stuart A. Smith, and Jerome M. Feit for the United States et al.; by Robert L. Baum and Ronald D. Jones for the Edison Electric Institute; by Joseph D. Alvaini for the New England Legal Foundation et al.; by James R. McIntosh and Allan B. Taylor for the New England Power Pool Executive Committee; and by Robert C. McDiarmid for the Unaffiliated Massachusetts Municipal Wholesale Customers of New England Power Co. CHIEF JUSTICE BURGER delivered the opinion of the Court. These three consolidated appeals present the question whether a state can constitutionally prohibit the exportation of hydroelectric energy produced within its borders by a federally licensed facility, or otherwise reserve for its own citizens the "economic benefit" of such hydroelectric power. I Appellant New England Power Co. is a public utility which generates and transmits electricity at wholesale. It sells 75% of its power in Massachusetts and much of the remainder in Rhode Island; less than 6% of New Hampshire's population is serviced by New England Power's wholesale customers. New England Power owns and operates six hydroelectric generating stations on the Connecticut River, consisting of 27 generating units. Twenty-one of these units - with a capacity of 419.8 megawatts, or about 10% of New England Power's total generating capacity - are located within the State of New Hampshire. The units are licensed by the Federal Energy [455 U.S. 331, 334] Regulatory Commission pursuant to Part I of the Federal Power Act, 41 Stat. 1063, as amended, 16 U.S.C. 791a-823 (1976 ed. and Supp. IV). Since hydroelectric facilities operate without significant fuel consumption, these units can produce electricity at substantially lower cost than most other generating sources. New England Power is a member of the New England Power Pool, whose utility-members own over 98% of the total generation capacity, and virtually all of the transmission facilities, in the six-state region. The objectives of the Power Pool, as described in the agreement among its members, are to assure the reliability of the region's bulk power supply and to attain "maximum practicable economy" through, inter alia, "joint planning, central dispatching . . . and coordinated construction, operation and maintenance of electric generation and transmission facilities owned or controlled by the Participants . . . ." New England Power Pool Agreement 4.1, App. 31a. All member-owned generating facilities are placed under the control of the Power Pool's Dispatch Center. A computer calculates the cost of generation for each generating unit and assigns each unit an operating schedule that will minimize the cost of the region's total power supply. Power generated at the various units, including New England Power's Connecticut River hydroelectric stations, flows freely through the Pool's regional transmission network, or "grid." The energy is dispatched to members' customers as their power needs arise, without regard to generating source. The Pool bills each member the amount it would have cost the utility to meet its customers' load using only its own generating sources, minus that member's share of the savings resulting from the centralized dispatch system. 1 [455 U.S. 331, 335] A New Hampshire statute, enacted in 1913, provides: "No corporation engaged in the generation of electrical energy by water power shall engage in the business of transmitting or conveying the same beyond the confines of the state, unless it shall first file notice of its intention so to do with the public utilities commission and obtain an order of said commission permitting it to engage in such business." N. H. Rev. Stat. Ann. 374:35 (1966). The statute empowers the New Hampshire Commission to prohibit the exportation of such electrical energy when it determines that the energy "is reasonably required for use within this state and that the public good requires that it be delivered for such use." Ibid. Since 1926, New England Power or a predecessor company periodically applied for and obtained approval from the New Hampshire Commission to transmit electricity produced at the Connecticut River plants to points outside New Hampshire. However, on September 19, 1980, after an investigation and hearings, the Commission withdrew the authority formerly granted New England Power to export its hydroelectric energy, and ordered the company to "make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities within the State of New Hampshire . . . ." 2 In its report accompanying the order, [455 U.S. 331, 336] the Commission found that New Hampshire's population and energy needs were increasing rapidly; that, primarily because of its low "generating mix" of hydroelectric energy, the Public Service Company of New Hampshire, the State's largest electric utility, had generating costs about 25% higher than those of New England Power; and that if New England Power's hydroelectric energy were sold exclusively in New Hampshire, New Hampshire customers could save approximately $25 million a year. The Commission therefore concluded that New England Power's hydroelectric energy was "required for use within the State" of New Hampshire, and that discontinuation of its exportation would serve the "public good." App. to Juris. Statement in No. 80-1208, pp. 25-39. The Commission did not, however, order New England Power to sever its connections with the Power Pool. So long as the electricity produced at New England Power's hydroelectric plants continues to flow through the Pool's regional transmission network, it will be impossible to contain that electricity within the State of New Hampshire in any physical sense. Although the precise contours of the Commission's order are unclear, it appears to require that New England Power sell electricity to New Hampshire utilities in an amount equal to the output of its in-state hydroelectric facilities, at special rates adjusted to reflect the entire savings attributable to the low-cost hydroelectric generation. 3 [455 U.S. 331, 337] New England Power, the Commonwealth of Massachusetts, and Dennis J. Roberts II, Attorney General of Rhode Island, appealed the Commission's order to the Supreme Court of New Hampshire. They contended that the order was pre-empted by Parts I and II of the Federal Power Act, 16 U.S.C. 791a-824k (1976 ed. and Supp. IV), and imposed impermissible burdens on interstate commerce. The court rejected these arguments, concluding that the "saving clause" of 201(b) of the Federal Power Act, 16 U.S.C. 824(b) (1976 ed., Supp. IV), granted New Hampshire authority to restrict the interstate transportation of hydroelectric power generated within the State. Appeal of New England Power Co., 120 N. H. 866, 876-877, 424 A. 2d 807, 814 (1980). 4 The court further held that the New Hampshire Commission's order did not interfere with the Federal Energy Regulatory Commission's exclusive regulatory authority over rates charged for interstate sales of electricity at wholesale. It thus remanded the case to permit the parties to "develop the mechanics of implemention" of the New [455 U.S. 331, 338] Hampshire Commission's order, and mandated that New England Power "make appropriate adjustments and filings with the appropriate federal and State administrative agencies to enable New Hampshire to regain the benefit of its hydroelectric power." Id., at 878-879, 424 A. 2d, at 815. 5 We noted probable jurisdiction, 451 U.S. 981 (1981), and we reverse. II The Supreme Court of New Hampshire recognized that, absent authorizing federal legislation, it would be "questionable" whether a state could constitutionally restrict interstate trade in hydroelectric power. 120 N. H., at 876, 424 A. 2d, at 814. Our cases consistently have held that the Commerce Clause of the Constitution, Art. I, 8, cl. 3, precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom. E. g., Hughes v. Oklahoma, 441 U.S. 322 (1979); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); West v. Kansas Natural Gas Co., 221 U.S. 229 (1911). Only recently, in Philadelphia v. New Jersey, 437 U.S. 617, 627 (1978), we reiterated that "[t]hese cases stand for the basic principle that a `State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State'" (quoting Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10 (1928)). 6 [455 U.S. 331, 339] The order of the New Hampshire Commission, prohibiting New England Power from selling its hydroelectric energy outside the State of New Hampshire, is precisely the sort of protectionist regulation that the Commerce Clause declares off-limits to the states. The Commission has made clear that its order is designed to gain an economic advantage for New Hampshire citizens at the expense of New England Power's customers in neighboring states. Moreover, it cannot be disputed that the Commission's "exportation ban" places direct and substantial burdens on transactions in interstate commerce. See Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927). Such state-imposed burdens cannot be squared with the Commerce Clause when they serve only to advance "simple economic protectionism." Philadelphia v. New Jersey, supra, at 624. The Supreme Court of New Hampshire nevertheless upheld the order of the New Hampshire Commission on the ground that 201(b) of the Federal Power Act expressly permits the State to prohibit the exportation of hydroelectric power produced within its borders. It is indeed well settled [455 U.S. 331, 340] that Congress may use its powers under the Commerce Clause to "[confer] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy." Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 44 (1980). See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769 (1945). The dispositive question, however, is whether Congress in fact has authorized the states to impose restrictions of the sort at issue here. III The national concern for planning, development, and comprehensive utilization of the country's water resources was very early expressed by Congress under its Commerce Clause powers. The Federal Water Power Act, now Part I of the Federal Power Act, 16 U.S.C. 791a-823 (1976 ed. and Supp. IV), was enacted in 1920. The potential of water power as a source of electric energy led Congress to exercise its constitutional authority over navigable streams to regulate and encourage development of hydroelectric power generation "to meet the needs of an expanding economy." FPC v. Union Electric Co., 381 U.S. 90, 99 (1965). In 1935, Congress enacted Part II of the Federal Power Act, 16 U.S.C. 824-824k (1976 ed. and Supp. IV), which delegated to the Federal Power Commission, now the Federal Energy Regulatory Commission, exclusive authority to regulate the transmission and sale at wholesale of electric energy in interstate commerce, without regard to the source of production. United States v. Public Utilities Comm'n of California, 345 U.S. 295 (1953). The 1935 enactment was a "direct result" of this Court's holding in Public Utilities Comm'n v. Attleboro Steam & Electric Co., supra, that the states lacked power to regulate the rates governing interstate sales of electricity for resale. United States v. Public Utilities Comm'n of California, supra, at 311. Part II of the Act was intended to "fill the gap" created by Attleboro by establishing exclusive federal jurisdiction over such sales. 345 U.S., at 307 -311. [455 U.S. 331, 341] Section 201(b) of the Act provides, inter alia, that the provisions of Part II "shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line." However, this provision is in no sense an affirmative grant of power to the states to burden interstate commerce "in a manner which would otherwise not be permissible." Southern Pacific Co. v. Arizona ex rel. Sullivan, supra, at 769. In 201(b), Congress did no more than leave standing whatever valid state laws then existed relating to the exportation of hydroelectric energy; by its plain terms, 201(b) simply saves from pre-emption under Part II of the Federal Power Act such state authority as was otherwise "lawful." The legislative history of the Act likewise indicates that Congress intended only that its legislation "tak[e] no authority from State commissions." H. R. Rep. No. 1318, 74th Cong., 1st Sess., 8 (1935) (emphasis added). Nothing in the legislative history or language of the statute evinces a congressional intent "to alter the limits of state power otherwise imposed by the Commerce Clause," United States v. Public Utilities Comm'n of California, supra, at 304, or to modify the earlier holdings of this Court concerning the limits of state authority to restrain interstate trade. E. g., Pennsylvania v. West Virginia, 262 U.S. 553 (1923); West v. Kansas Natural Gas Co., 221 U.S. 229 (1911). Rather, Congress' concern was simply "to define the extent of the federal legislation's pre-emptive effect on state law." Lewis v. BT Investment Managers, Inc., supra, at 49. 7 To support its argument to the contrary, New Hampshire relies on a single statement made on the floor of the House of [455 U.S. 331, 342] Representatives during the debates preceding enactment of Part II. Congressman Rogers of New Hampshire stated: "[T]he Senate bill as originally drawn would deprive certain States, I think five in all, of certain rights which they have over the exportation of hydroelectric energy which is transmitted across the State line. This situation has been taken care of by the House committee, and I hope when you come to it, section 201 of part II, that you will grant us the privilege to continue, as we have been for 22 years, to exercise our State right over the exportation of hydroelectric energy transmitted across State lines but produced up there in the granite hills of old New Hampshire." 79 Cong. Rec. 10527 (1935). From this expression of "hope," New Hampshire concludes that Congress specifically intended to preserve the very statute at issue here. Reliance on such isolated fragments of legislative history in divining the intent of Congress is an exercise fraught with hazards, and "a step to be taken cautiously." Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26 (1977); United States v. Public Utilities Comm'n of California, supra, at 319-321 (Jackson, J., concurring). However, even were we to accord significant weight to Congressman Rogers' statement, it would not support New Hampshire's contention that 201(b) was intended to permit states to regulate free from Commerce Clause restraint. Congressman Rogers simply urged his colleagues not to "deprive" the State of New Hampshire of "rights" it already possessed - i. e., to ensure that the Act itself would not be read as pre-empting otherwise valid state legislation. To be sure, some Members of Congress may have thought that no further protection of state authority was needed. 8 [455 U.S. 331, 343] Indeed, given that the Commerce Clause - independently of the Federal Power Act - restricts the ability of the states to regulate matters affecting interstate trade in hydroelectric energy, 201(b) may in fact save little in the way of "lawful" state authority. 9 But when Congress has not "expressly stated its intent and policy" to sustain state legislation from attack under the Commerce Clause, Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 427 , 431 (1946), we have no authority to rewrite its legislation based on mere speculation as to what Congress "probably had in mind." See United States v. Public Utilities Comm'n of California, 345 U.S., at 319 (Jackson, J., concurring); see also id., at 311. We must construe 201(b) as it is written, and as its legislative history indicates it was intended - as a standard "nonpre-emption" clause. 10 [455 U.S. 331, 344] IV We conclude, therefore, that New Hampshire has sought to restrict the flow of privately owned and produced electricity in interstate commerce, in a manner inconsistent with the Commerce Clause. Section 201(b) of the Federal Power Act does not provide an affirmative grant of authority to the State to do so. For these reasons, the judgment of the Supreme Court of New Hampshire is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. Footnotes [Footnote 1 Testimony before the New Hampshire Public Utilities Commission in these cases indicated that the savings have been substantial. For example, in 1979, the savings attributable to the Power Pool's centralized dispatch [455 U.S. 331, 335] system were reported at over $44 million. App. 35a, 56a. See generally Federal Energy Regulatory Commission, Office of Electric Power Regulation, Power Pooling in the United States 15-23, 39-41, 69-79 (1981), for a description of efficiencies attributable to pooling arrangements. [Footnote 2 The order reads: "ORDERED, that the permission granted New England Power Company (NEPCO) to transmit hydroelectric energy from within the boundaries of the State to outside the State is hereby withdrawn as of thirty (30) days from the date of this Order; and it is "FURTHER ORDERED, that NEPCO make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities [455 U.S. 331, 336] within the State of New Hampshire within thirty (30) days of the date of this Order; and it is "FURTHER ORDERED, that upon the completion of both units at Seabrook the Commission will again re-examine the issue of exportation." [Footnote 3 For example, the Commission's staff economist testified at the hearings that New England Power could "allocate the benefits of low-cost hydroelectric power to New Hampshire through billing mechanisms" pursuant to which the power would be sold in New Hampshire at "economic cost" - i. e., the cost of producing the power, including depreciation, plus a return on invested capital. App. 38a-39a. The economist's analysis of the [455 U.S. 331, 337] benefits which would ensue from restricting the "exportation" of hydroelectric energy in this manner - upon which the New Hampshire Commission relied heavily in its report - was based on the assumption that New England Power would simply enter into new unit power contracts with New Hampshire utilities for an amount of kilowatt hours equal to New England Power's average hydroelectric generation over the course of a number of years. 3 Tr. of Hearings before the N. H. Public Utilities Comm'n in DE 79-223, pp. 23-24, 1-35. Although the record is not entirely clear on this point, it appears that the "economic benefit," or "savings," attributable to New England Power's hydroelectric facilities is currently reflected in the company's general wholesale rates, and thus shared pro rata by its customers in Massachusetts, Rhode Island, and New Hampshire. App. 15a-18a. See also Brief for Appellant in No. 80-1208, p. 7. [Footnote 4 The court also dismissed several arguments advanced only by appellants Massachusetts and Roberts - that 201(b), as so interpreted, exceeded Congress' power under the Commerce Clause, Art. I, 8, cl. 3, and violated both the Privileges and Immunities Clause, Art. IV, 2, cl. 1, and the Tenth Amendment of the Constitution. [Footnote 5 The parties inform us that the New Hampshire Commission has refrained from acting on remand pending this Court's disposition of the appeals. [Footnote 6 We find no merit in New Hampshire's attempt to distinguish these cases on the ground that it "owns" the Connecticut River, the source of New England Power's hydroelectricity. Whatever the extent of the State's proprietary interest in the river, the pre-eminent authority to regulate [455 U.S. 331, 339] the flow of navigable waters resides with the Federal Government, United States v. Twin City Power Co., 350 U.S. 222 (1956), which has licensed New England Power to operate its Connecticut River hydroelectric plants pursuant to a determination that those facilities are "best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce," 16 U.S.C. 803(a). New Hampshire's purported "ownership" of the Connecticut River therefore provides no justification for restricting or conditioning the use of these federally licensed units. See First Iowa Hydro-Electric Co-operative v. FPC, 328 U.S. 152 (1946). Moreover, New Hampshire has done more than regulate use of the resource it assertedly owns; it has restricted the sale of electric energy, a product entirely distinct from the river waters used to produce it. See Utah Power & Light Co. v. Pfost, 286 U.S. 165, 179 -181 (1932). This product is manufactured by a private corporation using privately owned facilities. Thus, New Hampshire's reliance on Reeves, Inc. v. Stake, 447 U.S. 429 (1980) - holding that a state may confine to its residents the sale of products it produces - is misplaced. [Footnote 7 Indeed, had Congress intended 201(b) to confer upon the states powers which they would have lacked in the absence of the federal legislation, it would have been anomalous to speak in terms of "authority now exercised." This language plainly assumes the prior existence of valid state authority; in addition, it appears to limit the saving effect of the provision to those few States in which the authority was in fact "exercised" in 1935. [Footnote 8 On the other hand, it would not have been at all unusual had Congress taken care that the 1935 enactment not displace state authority in the area, [455 U.S. 331, 343] without consideration of the scope of that authority or the extent to which it might be constrained by other provisions of federal law. See Milwaukee v. Illinois, 451 U.S. 304, 329 , n. 22 (1981). [Footnote 9 We need not speculate here as to the precise contours of 201(b)'s saving effect. [Footnote 10 Even were we to conclude that Congress intended 201(b) to override restraints placed on state regulatory power by the Commerce Clause, there would remain a substantial question whether the order of the New Hampshire Commission was entitled to protection under that provision. Section 201(b) seeks to protect only state regulation relating to the "exportation" of hydroelectric power. However, New England Power cannot terminate its out-of-state transmission of hydroelectricity without substantial alterations in the regional transmission system to which its hydroelectric facilities are connected - alterations which the New Hampshire Commission did not appear to contemplate would be made. Appeal of New England Power Co., 120 N. H. 866, 876-877, 424 A. 2d 807, 814 (1980). The operative effect of the Commission's order would be to compel New England Power to enter into new wholesale contracts with New Hampshire utilities, at rates fixed by the New Hampshire Commission to reflect the "economic cost" of the company's hydroelectric production. See supra, at 336, and n. 3. Appellants argue that such state regulation is incompatible with Part II of the Federal Power Act - which vests in the Federal Energy Regulatory Commission exclusive ratemaking jurisdiction [455 U.S. 331, 344] over "the sale of electric energy at wholesale in interstate commerce," 16 U.S.C. 824(b), 824d-824f (1976 ed. and Supp. IV) - and conflicts directly with 205(b) of the Federal Power Act, 16 U.S.C. 824d(b), which prohibits utilities from maintaining "any unreasonable difference in rates . . . as between localities" with respect to sales subject to federal jurisdiction. Given our holding that the New Hampshire Commission's order violates the Commerce Clause, we need not decide this issue. [455 U.S. 331, 345]

conservative

public_entity

economic_activity

1952-062-01

United States Supreme Court RAMSPECK v. TRIAL EXAMINERS CONF.(1953) No. 278 Argued: Decided: March 9, 1953 Certain provisions of regulations promulgated by the Civil Service Commission under 11 of the Administrative Procedure Act and governing the classification, promotion, compensation and tenure of trial examiners and the assignment of cases to them are here sustained as conforming to the statute and carrying out the purpose and intent of Congress. Pp. 129-143. 1. The provision of 11 of the Act that hearing examiners shall receive compensation prescribed by the Commission "in accordance with the Classification Act" authorizes the Commission to establish more than one salary grade for hearing examiners employed by a particular agency; and 34.10 of the Regulations is valid. Pp. 134-137. 2. Section 34.4 of the Regulations, which provides for the promotion of individual hearing examiners and gives the agency a choice as to how a vacancy in a higher grade may be filled - i. e., by promotion from within or otherwise - does not violate 11 of the Act. Pp. 137-139. 3. The provision of 11 of the Act that hearing examiners "shall be assigned to cases in rotation so far as practicable" does not require that all hearing examiners employed by a particular agency be assigned to cases in mechanical rotation without regard to the difficulty or complexity of particular cases or the experience or competence of particular examiners; and 34.12 of the Regulations is valid. Pp. 139-140. 4. Section 34.15 of the Regulations, which provides for a reduction in force of examiners under circumstances governing the reduction in force of other federal employees, is not inconsistent with the provision of 11 of the Act that examiners "shall be removable . . . only for good cause established and determined by the Civil Service Commission . . . ." Pp. 140-143. 91 U.S. App. D.C. 164, 202 F.2d 312, reversed. [345 U.S. 128, 129] The District Court enjoined enforcement of four Civil Service Rules concerning trial examiners. 104 F. Supp. 734. The Court of Appeals affirmed. 91 U.S. App. D.C. 164, 202 F.2d 312. This Court granted certiorari. 344 U.S. 853 . Reversed and remanded with directions to dismiss the complaint, p. 143. Robert W. Ginnane argued the cause for petitioners. With him on the brief was Solicitor General Cummings. Charles S. Rhyne argued the cause for respondents. With him on the brief was Eugene J. Bradley. Richard S. Doyle and Donald C. Beelar filed a brief for the Bar Association of the District of Columbia, Inc., as amicus curiae, urging affirmance. MR. JUSTICE MINTON delivered the opinion of the Court. The present suit was brought by the Federal Trial Examiners Conference, 1 an unincorporated association of trial examiners, and by a number of individual trial examiners, against the members of the United States Civil Service Commission and the National Labor Relations Board. The plaintiffs, who had been appointed pursuant to 11 of the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. 1010, sought a declaratory judgment that certain rules relating to their promotion, compensation, tenure, and the assignment of cases, promulgated by the Civil Service Commission pursuant to 11, were invalid, and asked that their enforcement be enjoined. The District Court held that these four rules were invalid, interpreting 11 as requiring: (1) that [345 U.S. 128, 130] hearing examiners employed by a particular federal administrative agency must be placed in the same salary grade; (2) that a hearing examiner may not be promoted from one salary grade to another within the same agency; (3) that hearing examiners must be assigned to cases in mechanical rotation without regard to the difficulty or importance of particular cases or the competence or experience of particular examiners; and (4) that the employment of hearing examiners may not be terminated by reduction in force procedures where there is a lack of work or of funds with which to pay them. The District Court granted a permanent injunction against the enforcement of these four Civil Service rules, 104 F. Supp. 734. The Court of Appeals affirmed in a short per curiam opinion, one judge dissenting. 91 U.S. App. D.C. 164, 202 F.2d 312. We granted certiorari, 344 U.S. 853 . Prior to the passage of the Administrative Procedure Act, hearing examiners' tenure and status were governed by the Classification Act of 1923, as amended. Under the Classification Act, as employees of an agency, their classification was determined by the ratings given them by the agency, and their compensation and promotion depended upon their classification. The examiners were in a dependent status. With the rapid growth of administrative law in the last few decades, the role of these quasi-judicial officers became increasingly significant and controversial. Many of the regulatory powers which Congress has assigned federal administrative agencies can be exercised only after notice and hearing required by the Constitution or by statute. These agencies have such a volume of business, including cases in which a hearing is required, that the agency heads, the members of boards or commissions, can rarely preside over hearings in which evidence is required. The agencies met this problem long before [345 U.S. 128, 131] the Administrative Procedure Act by designating hearing or trial examiners to preside over hearings for the reception of evidence. Such an examiner generally made a report to the agency setting forth proposed findings of fact and recommended action. The parties could address to the agency exceptions to the findings, and, after receiving briefs and hearing oral argument, the agency heads would make the final decision. Many complaints were voiced against the actions of the hearing examiners, it being charged that they were mere tools of the agency concerned and subservient to the agency heads in making their proposed findings of fact and recommendations. A study by President Roosevelt's Committee on Administrative Management resulted in a report in 1937 recommending separation of adjudicatory functions and personnel from investigative and prosecution personnel in the agencies. The Attorney General's Committee on Administrative Procedure was appointed in 1939 to study the decisional process in administrative agencies, and the final report of this Committee was published in 1941. Both the majority and minority members of the Committee recommended that hearing examiners be made partially independent of the agency by which they were employed; the majority recommended hearing examiners be appointed for a term of seven years, and the minority recommended a term of twelve years. Although extensive hearings were held on bills to carry out the recommendations of this Committee, World War II delayed final congressional action on the subject. After the war, the McCarran-Sumners Bill, which became the Administrative Procedure Act, was introduced. The Senate Judiciary Committee Print of June 1945 reveals that at that time there was still great diversity of opinion as to how the status of hearing examiners should be enhanced. Several proposals were considered, and in the final bill Congress provided that [345 U.S. 128, 132] hearing examiners should be given independence and tenure within the existing Civil Service system. 2 Congress intended to make hearing examiners "a special class of semi-independent subordinate hearing officers" 3 by vesting control of their compensation, promotion and tenure in the Civil Service Commission to a much greater extent than in the case of other federal employees. Section 11 is as follows: "Subject to the civil-service and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations [345 U.S. 128, 133] or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. Agencies occasionally or temporarily insufficiently staffed may utilize examiners selected by the Commission from and with the consent of other agencies. For the purposes of this section, the Commission is authorized to make investigations, require reports by agencies, issue reports, including an annual report to the Congress, promulgate rules, appoint such advisory committees as may be deemed necessary, recommend legislation, subpena witnesses or records, and pay witness fees as established for the United States courts." An examination of 11 shows that Congress retained the examiners as classified Civil Service employees but made inapplicable to them paragraphs (2) and (3) of subsection (b) of 7 of the Classification Act and 9 of that Act. These sections had made the examiners dependent upon the agencies' ratings for their classification. Freed from this dependence upon the agencies, the examiners were specifically declared to be otherwise under the other provisions of the Classification Act of 1923 as amended (now the Classification Act of 1949, 5 U.S.C. (Supp. V) 1071 et seq.). The position of hearing examiners is not a constitutionally protected position. It is a creature of congressional enactment. The respondents have no vested right to positions as examiners. They hold their posts by such tenure as Congress sees fit to give them. Their positions may be regulated completely by Congress, or Congress may delegate the exercise of its regulatory power, under proper standards, to the Civil Service Commission, which it has done in this case. [345 U.S. 128, 134] The question we have presented is whether the Civil Service Commission in the adoption of these rules followed or departed from the directions given it by 11 of the Administrative Procedure Act. Did it implement the statute, or did it enlarge it? Respondents do not contend that all hearing examiners should be classified in the same grade; they contend only that all hearing examiners in any one agency should be classified in the same grade. Petitioners argue that cases in a given agency are of varying levels of difficulty and importance and that the examiners hearing them must possess varying degrees of competency and types of qualifications. Petitioners point to the experience of the Civil Aeronautics Board where there are safety cases heard by one group of examiners and economic cases heard by another. The examiners assigned to the safety cases have pilots' certificates, while those assigned to the economic cases have completely different types of qualifications. Again, certain cases before the Interstate Commerce Commission involve relatively simple applications for extensions of motor carrier certificates, while others involve complicated and difficult railroad rate proceedings. Petitioners' argument indicates the need for specialization among examiners in the same agency to meet the diverse types of cases presented. Proceeding under the provisions of the Classification Act, the Commission still classified the examiners according to their experience, skill, and ability, 4 but without seeking or receiving rating of the examiners by the [345 U.S. 128, 135] agencies and wholly independent thereof. A classification of the examiners into grades, with salaries appropriate to each grade, was set up by the Commission in each federal agency using examiners. This classification ranged from just one grade in several agencies to five grades in two agencies. Allocation of examiners in accordance with these classifications is provided for in Rule 34.10 5 which specifically states, "Allocations shall be made independently of agency recommendations and ratings." (Emphasis supplied.) When the Commission classified the examiners according to the Classification Act, it was doing just what Congress directed it to do. As has been previously shown, 11 specifically directs that "Examiners shall receive [345 U.S. 128, 136] compensation . . . in accordance with the Classification Act of 1923, as amended," with the exception provided in the statute and in the rules that this is to be done independently of agency influence. This contradicts the contention that Congress did not intend to permit classification of examiner positions by the Commission. The Act clearly provides, as Congress thought it did, 6 for the allocation of positions within an agency to be made in various salary grades, which reflect the competence and experience of the person in the grade. Congress must have recognized the right of the Commission so to classify when it amended the Classification Act in 1949. At that time it specifically excluded thirty-two categories of government employees, but not examiners, 5 U.S.C. (Supp. V) 1082, although the Commission then was classifying examiners under regulations similar to the present ones. The District Court was critical of the specifications used by the Commission to classify the examiners as being "nebulous and subjective." To classify the positions into the different grades from GS 11 to GS 15, the Commission used specifications as to job content as "moderately difficult and important," "difficult and important," "unusually difficult and important," "exceedingly [345 U.S. 128, 137] difficult and important," and "exceptionally difficult and important." These specifications of necessity must be subjective. They are not based so much on evidence as on judgment. It is a discriminating judgment and one Congress committed to the experience and expertise of the Civil Service Commission, not the courts. The specifications evidently had practical content and meaning to Congress, as it repeatedly used similar phrases to describe relative methods in 602 of the Classification Act of 1949, 5 U.S.C. (Supp. V) 1112. We come next to Rule 34.4 of the Commission relating to promotions, 7 which is set forth in the margin. This [345 U.S. 128, 138] rule was held invalid by the District Court, consistent with its view that there can be no classification of examiners and therefore there can be only one grade. Since we disagree with the court below as to the right of the Commission to classify examiners into grades within an agency and hold that such classification can be made, it must follow that promotions from one grade to another may be made. But respondents also challenge the method by which promotions are made. The rule provides that the agency shall decide if there is a vacancy to be filled, and further that the agency shall decide if this vacancy is to be filled by promotion from among the present examiners. The examiners insist that thus the agency can control and coerce its examiners, and has an absolute veto power over promotions. But it is the Commission which chooses the examiner who shall receive the promotion. Respondents imagine all sorts of devious schemes by which the agencies shrewdly analyze their staffs to pick out which examiners would probably be chosen by the Commission for promotion, and then create vacancies for them as a reward for favorable decisions, or else fill vacancies from outside in order to discipline recalcitrant examiners. Respondents have not shown any actual examples of this, nor do they show that in such circumstances the Commission would not correct the situation. As a practical matter, the Commission must always turn to the agency for advice on the number of examiners needed at the various levels. The statute declares that [345 U.S. 128, 139] "there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary." (Emphasis supplied.) It then puts sufficient responsibility in the Commission's hands to ensure independent judgments from the examiners. It does not reduce the responsibility of the agency to see that it has a sufficient number of competent examiners to handle its business properly. We come next to Rule 34.12, Rotation of Examiners. It provides: "Insofar as practicable, examiners shall be assigned in rotation to cases of the level of difficulty and importance that are normally assigned to positions of the salary grade they hold." 5 CFR, 1951 Supp., 34.12. This rule purports to implement the provision of 11 that examiners "shall be assigned to cases in rotation so far as practicable." (Emphasis supplied.) The respondents contend that this means mechanical rotation - that a case must be assigned to an examiner when his name comes up on the register, unless he is on leave or sick or disqualified or has not completed another assignment, etc. The lower courts accepted the respondents' view and held Rule 34.12 invalid. The Commission gave to 11's requirement of assignment of cases in rotation "so far as practicable" consideration beyond the mere mechanics of bringing the next case on the docket opposite the top name on the register of available examiners. It gave consideration to the kind of case involved as well as the kind of examiner available. The Commission had classified the examiners on that basis, and it considered it was practicable to assign cases to examiners who were, according to their classification, qualified to handle the case at hand, having regard to the complexity and difficulty [345 U.S. 128, 140] thereof, together with the experience and ability of the examiner available. If assigned by mechanical rotation, the value and use of such classification, which Congress had authorized, would be lost. To use the classification, it was not practicable to use mechanical rotation. Congress did not provide for the classification of examiners by the Commission, and then provide for the Commission to ignore such classification by a mechanical rotation. The rotation for practical reasons was adjusted to the classifications. This was an allowable judgment by the Commission as to what was practicable. Finally, we come to the consideration of Rule 34.15, 8 which provides for a reduction in force of examiners [345 U.S. 128, 141] under circumstances governing the reduction in force of other federal employees. Respondents' contention, sustained by the courts below, is that the provision of 11 that examiners "shall be removable . . . only for good [345 U.S. 128, 142] cause established and determined by the Civil Service Commission . . . after opportunity for hearing and upon the record thereof" gives them a lifetime position, subject to removal only for cause, and that the reduction in force procedures of the Commission have no application to them. In this, we think the respondents are mistaken. Congress intended to provide tenure for the examiners in the tradition of the Civil Service Commission. They were not to be paid, promoted, or discharged at the whim or caprice of the agency or for political reasons. One of the individual examiners suing here was discharged by the Labor Board for lack of funds. The Commission has traditionally provided for a reduction in force for lack of funds, personnel ceilings, reorganizations, decrease of work, and similar reasons. 5 CFR, 1951 Supp., 20.2 (a). Part of respondents' argument seems to direct itself to the point that it is the agency which makes the reduction in force. Rule 34.15 provides for the dropping of examiners with the lowest number of "retention credits" after the agency finds that it must reduce its force. These credits are based on length of service and are beyond the power of the agency to affect. As with promotions, the Commission will always need to consult with the agency to ascertain that there is occasion for a reduction. Just as the statute leaves with the agency the duty to see that there are an adequate number of the right type of examiners, it leaves with the agency the responsibility to declare that there are a lesser number of examiners necessary at this time. It must be assumed that the Commission will prevent any devious practice by an agency which would abuse this Rule. The Rule provides for examiner appeal to the Commission, so there is opportunity to bring abuses to the Commission's attention. Also challenged is the statement in the [345 U.S. 128, 143] Retention Preference Regulations for Reduction in Force (5 CFR, 1951, 20.2) allowing reduction in force "for other reasons." This is obviously to provide for legitimate reasons for reduction not now foreseen, and it must be assumed that the Commission will not permit an agency to misuse it. We find no evidence that Congress intended to make hearing examiners a class with lifetime employment, whether there was work for them to do or not, as contended by the respondents. A reduction in force for the reasons heretofore provided by the Civil Service Commission and removal of an examiner in accordance therewith is "good cause" within the meaning of 11. The rules conform to the statute and carry out the purpose and intent 9 of Congress, and they are therefore valid. The judgment is reversed, and the cause is remanded to the District Court with directions to dismiss the complaint. Reversed. Footnotes [Footnote 1 Since the question was not raised before us, we do not rule on the standing of the Federal Trial Examiners Conference to be a party in this suit. [Footnote 2 The Senate Report described the alternatives before the Congress and the purpose of 11 as follows: "The purpose of this section is to render examiners independent and secure in their tenure and compensation. The section thus takes a different ground than the present situation, in which examiners are mere employees of an agency, and other proposals for a completely separate `examiners' pool' from which agencies might draw for hearing officers. Recognizing that the entire tradition of the Civil Service Commission is directed toward security of tenure, it seems wise to put that tradition to use in the present case. However, additional powers are conferred upon the Commission." Administrative Procedure Act - Legislative History, S. Doc. No. 248, 79th Cong., 2d Sess., p. 215. [Footnote 3 Legislative History, p. 192. [Footnote 4 Section 11 of the Administrative Procedure Act became effective June 11, 1947, one year after the Act's approval. The Commission accepted the examiner positions in the five different grades established by the agencies. After notice and hearing, regulations were promulgated on September 23, 1947. The Commission appointed a Board of Examiners from outside the Government to pass on the qualifications of incumbent status examiners, and to conduct a competitive [345 U.S. 128, 135] examination for nonstatus incumbents and new applicants. When the results were announced in March 1949, 25.5% of the 212 status incumbents rated by the Board were found disqualified, but appeals were taken and ultimately all were found qualified. The action of the Board of Examiners was much criticized. See Thomas, The Selection of Federal Hearing Examiners: Pressure Groups and the Administrative Process (1950), 59 Yale L. J. 431, 433; Fuchs, The Hearing Examiner Fiasco Under the Administrative Procedure Act (1950), 63 Harv. L. Rev. 737, 767. Meanwhile, dispute had arisen as to what part the agencies had in the promotion of examiners - the existing regulations permitted the agency to select the examiner to be promoted subject to the retroactive approval of the Commission. On February 23, 1951, the Attorney General issued an opinion holding the promotion regulation invalid. 41 Op. Atty. Gen., No. 14. On September 21, 1951, the Commission promulgated the present regulations involved in this suit. [Footnote 5 " 34.10 Compensation. (a) Hearing examiner positions shall be allocated by the Commission in accordance with the regulations and procedures adopted by the Commission for allocations under the Classification Act of 1949. Allocations shall be made independently of agency recommendations and ratings. "(b) Hearing examiners shall receive within-grade salary advancements in accordance with Part 25 of this chapter: Provided, That the requirement of a satisfactory or better performance rating shall not apply." 5 CFR, 1951 Supp., 34.10. [Footnote 6 "In the matter of examiners' compensation the section adds greatly to the Commission's powers and function. It must prescribe and adjust examiners' salaries, independently of agency ratings and recommendations. The stated inapplicability of specified sections of the Classification Act carries into effect that authority. The Commission would exercise its powers by classifying examiners' positions and, upon customary examination through its agents, shift examiners to superior classifications or higher grades as their experience and duties may require. The Commission might consult the agency, as it now does in setting up positions or reclassifying positions, but it would act upon its own responsibility and with the objects of the bill in mind." Legislative History, p. 215 (Senate Report). See also pp. 280-281 (House Report). [Footnote 7 " 34.4 Promotion - (a) From a hearing examiner position. When an agency decides that a hearing examiner position should be filled by the promotion of one of its hearing examiners, the Commission will select the examiner who is to be promoted. To be eligible to compete for promotion, hearing examiners must be serving in the agency, in the area of competition designated by the Commission, under absolute appointments, in grades lower than the position to be filled. In addition, hearing examiners must meet the current recruiting standards (including the requirement of at least one year of experience of a level of difficulty comparable to that of the next lower grade). After examining the qualifications of all candidates, the Commission will select the best qualified. The hearing examiner selected by the Commission must be promoted not later than the beginning of the second pay period following the period in which the Commission's decision is reached, unless the Commission directs that the promotion be delayed pending adjudication of appeals. Once an agency elects to have a position filled by promotion and the Commission undertakes an examination to fill the position, the hearing examiner selected by the Commission must be promoted. "(b) From a position other than a hearing examiner position. When an agency desires to fill a vacancy in a hearing examiner position by the promotion of an employee who is serving in a position other than a hearing examiner position, with competitive status but without absolute status as a hearing examiner, it shall submit the name of the person to the Commission with an application form executed by him. The Commission will rate the qualifications of the applicant in [345 U.S. 128, 138] accordance with the experience and training requirements of the open competitive examination (except the maximum age requirement) including an investigation of character and suitability. If on the basis of the rating assigned, the applicant would be within reach for certification if his name were on the open competitive register with the same rating, the Commission will approve the promotion; otherwise it will disapprove the request." 5 CFR, 1951 Supp., 34.4. [Footnote 8 " 34.15 Reductions in force - (a) Retention credits. Retention credits for purposes of reductions in the force of hearing examiners are credits for length of service in determining retention order in each retention subgroup. They are computed by allowing one point for each full year of Federal Government service. "(b) Retention preference, classification. For the purpose of determining relative retention preference in reduction in force, hearing examiners shall be classified according to tenure of employment in competitive retention groups and subgroups in the manner prescribed in 20.3 of the Retention Preference Regulations for Use in Reductions in Force (Part 20 of this chapter): Provided, That no distinction will be made in subgroups on the basis of a satisfactory or better performance rating as opposed to performance ratings of less than satisfactory. "(c) Status of hearing examiners who are reached in reduction in force. When a hearing examiner has been separated, furloughed, or reduced in rank or compensation because of a reduction in force, his name shall be placed at the top of the open competitive register for the grade in which he formerly served and for all lower grades. Where more than one hearing examiner is affected, the qualifications of the several hearing examiners shall be rated by the Commission and relative standing at the top of the register will be on the basis of these ratings. "(d) Appeals. (1) Any hearing examiner who feels that there has been a violation of his rights under the regulations governing reductions in force may appeal to the Commission (attention, Chief Law [345 U.S. 128, 141] Officer) within 10 days from the date he received his notice of the action to be taken. "(2) Each appeal shall state clearly the grounds on which it is based, whether error in the records; violation of the rule of selection; restriction of the competitive area or level; disregard of a specified right under the law or regulations; or denial of the right to examine the regulations, retention register, or records. "(3) The agency in which the hearing examiner is employed shall be notified of the appeal and shall be allowed to file an answer thereto. The agency's answer must be submitted to the Commission's Chief Law Officer within 10 days from the date the agency is notified. "(4) Upon receipt of an appeal the Chief Law Officer will refer the case to the Personnel Classification Division for investigation. The Personnel Classification Division will make investigation and submit its report to the Chief Law Officer. If the investigation discloses violations of the rights of the appellant, the Chief Law Officer shall notify the agency as to the corrective action to be taken. The agency may appeal the decision of the Chief Law Officer within 10 days of its receipt to the Commission's Board of Appeals and Review. If the Board of Appeals and Review disagrees with the decision of the Chief Law Officer, it shall refer the case to the Commission's Chief Hearing Examiner for a hearing in accordance with subparagraph (5) of this paragraph. "(5) Appeals in which the Chief Law Officer cannot make initial finding in favor of the appellant shall be referred to the Commission's Chief Hearing Examiner for a hearing. The hearing shall be conducted in accordance with the provisions of the Administrative Procedure Act. The appellant, the agency concerned, and the Commission's Chief Law Officer may be represented at the hearing. Upon completion of the hearing the presiding hearing examiner shall transmit the entire file with his recommended decision to the Commission for decision. "(e) Retention preference regulations. The Retention Preference Regulations for Use in Reduction in Force (Part 20 of this chapter), except as modified by this section, shall apply to reductions in the force of hearing examiners." [Footnote 9 Respondents' brief and the dissenting opinion filed herein quote a sentence from a letter of September 6, 1951, from Senator McCarran, Chairman of the Senate Judiciary Committee, to Chairman Ramspeck of the Civil Service Commission, as follows: "It was intended that [examiner] be very nearly the equivalent of judges even though operating within the Federal system of administrative justice." S. Doc. No. 82, 82d Cong., 1st Sess., p. 9. We do not feel justified in regarding this sentence, taken out of context and written over five years after the Administrative Procedure Act was enacted, as illustrative of the intent of Congress at the time it passed the Act. MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE DOUGLAS concur, dissenting. I think these regulations should be held invalid and the judgment affirmed for substantially the reasons given in the opinion of Chief Judge Laws of the District Court for the District of Columbia. 104 F. Supp. 734. I wish [345 U.S. 128, 144] to add a few words merely to emphasize certain aspects of that opinion. The Administrative Procedure Act was designed to give trial examiners in the various administrative agencies a new status of freedom from agency control. Henceforth they were to be "very nearly the equivalent of judges even though operating within the Federal system of administrative justice." 1 Agencies were stripped of power to remove examiners working with them. Henceforth removal could be effected only after hearings by the Civil Service Commission. That same Commission was empowered to prescribe an examiner's compensation independently of recommendations or ratings by the agency in which the examiner worked. And to deprive regulatory agencies of all power to pick particular examiners for particular cases, 11 of the Act commanded that examiners be "assigned to cases in rotation so far as practicable . . . ." I agree with the District Court and the Court of Appeals that the regulations here sustained go a long way toward frustrating the purposes of Congress to give examiners independence. 2 Section 11 of the Administrative Procedure Act, as pointed out, provides that examiners may be removed "only for good cause established" after hearings. One of the regulations here approved authorizes their removal when an agency finds it necessary to reduce its force. We have been pointed to no act of Congress which justifies this regulation. Another regulation here approved permits the assignment of cases to examiners by "classification" instead of by "rotation" as 11 requires. I do not agree with the Court that the Classification Act of 1923 or any other [345 U.S. 128, 145] act of Congress authorizes the distinctions here made between examiners. In fact, the Administrative Procedure Act appears to contemplate that all examiners employed by a particular agency stand on equal footing in regard to service and pay. A central objective was to prevent agency heads from using powers over assignments to influence cases. Unlimited discretion in assignment would lead to subservient examiners, it was thought. But the effect of the Civil Service classifications is to restore the unlimited discretion existing before passage of the Administrative Procedure Act. The distinctions depended upon to support the different classifications are so nebulous that the head of an agency is left practically free to select any examiner he chooses for any case he chooses. For the regulations permit the head of an agency to assign a particular case on the basis of whether the head of the agency believes it to be "moderately difficult and important," "difficult and important," "unusually difficult and important," "exceedingly difficult and important," or "exceptionally difficult and important." And administrative agencies are permitted to attribute choice of a particular examiner for a particular case to considerations whether "complex legal, economic, financial or technical questions or matters" are merely "moderately complex," "fairly complex," "extremely complex," "exceptionally complex," or just "complex." I think all these conceptualistic distinctions mean is that the congressional command for a nonagency controlled rotation of cases is buried under words. [Footnote 1 S. Doc. No. 82, 82d Cong., 1st Sess. 9. [Footnote 2 Support of the foregoing statements as to the purpose of the Act can be found in Wong Yang Sung v. McGrath, 339 U.S. 33 , and in the opinion of Chief Judge Laws, 104 F. Supp. 734. [345 U.S. 128, 146]

conservative

public_entity

civil_rights

1963-025-01

United States Supreme Court UNITED STATES v. BEHRENS(1963) No. 86 Argued: October 17, 1963Decided: December 9, 1963 Respondent was convicted in a Federal District Court of an offense punishable under 18 U.S.C. 113 (a) by imprisonment for not more than 20 years. The Trial Judge issued an oral order under 18 U.S.C. 4208 (b) committing respondent to the custody of the Attorney General pending receipt of a report from the Bureau of prisons. His order provided that, after the report was received, respondent's commitment, deemed to be for 20 years, would "be subject to modification in accordance with" 4208 (b). After the report was received, the Trial Court entered an order fixing the period of imprisonment at 5 years and providing that the Board of Parole might decide when respondent should be eligible for parole. Neither respondent nor his counsel was present when this order was entered, and respondent subsequently moved to vacate sentence under 28 U.S.C. 2255. Held: The first order under 4208 (b) was a preliminary commitment postponing action as to the final sentence; the later order fixing the sentence at 5 years was an "imposition of sentence," within the meaning of Federal Rule of Criminal Procedure 43; and the District Court erred in fixing final sentence in the absence of respondent and his counsel. Pp. 162-166. 312 F.2d 223, affirmed. Louis F. Claiborne argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Ralph S. Spritzer, Beatrice Rosenberg and Theodore George Gilinsky. Aribert L. Young argued the cause and filed a brief for respondent. Leon B. Polsky filed a brief for the Legal Aid Society, as amicus curiae, urging affirmance. MR. JUSTICE BLACK delivered the opinion of the Court. Respondent was convicted in a United States District Court of an assault with intent to murder, an offense [375 U.S. 162, 163] punishable under 18 U.S.C. 113 (a) "by imprisonment for not more than twenty years." Desiring more detailed information as a basis for determining the sentence to be imposed, the trial judge decided to proceed "under the flexible provisions of [] 4208" of 18 U.S.C. Accordingly, he committed respondent to the custody of the Attorney General to await a study by the Director of the Bureau of Prisons of respondent's previous delinquency, criminal experience, social background, etc. His order provided that after the results of the study and the Director's recommendations were reported to the court, respondent's commitment, deemed to be for 20 years, would "be subject to modification in accordance with Title 18 U.S.C. 4208 (b)." 1 After the Director's report was received, the trial court entered an order providing "that the period of imprisonment heretofore imposed be reduced to Five (5) years" and that the Board of Parole might decide when the respondent should be eligible for parole. Neither respondent nor his counsel was present when this modification of [375 U.S. 162, 164] the court's previous commitment under 4208 (b) was entered. No direct appeal was taken, but respondent moved to vacate sentence under 28 U.S.C. 2255. The trial court denied relief, but the Court of Appeals reversed and remanded with directions to vacate the sentence on the ground that it was error for the district judge to impose the final sentence under 4208 (b) in the absence of petitioner and his counsel. 2 In another case, Corey v. United States, 307 F.2d 839, the Court of Appeals for the First Circuit held that it was the original commitment under 4208 (b), not the fixing of the final sentence, which marked the point from which time to appeal began running. Because of the disagreement between the two appellate courts' interpretation of 4208 (b) and the general confusion in District Courts and Courts of Appeals as to this section's exact meaning and effect, we granted certiorari in both cases. 3 In asking that we grant certiorari in the present case, the Solicitor General conceded that if the action of the District Court in fixing the final term of imprisonment under 4208 (b) was a final judgment for the purposes of appeal, then the defendant would plainly be entitled to have himself and his counsel present when the final action was taken. We have decided today, for reasons set out in our opinion in the Corey case, post, p. 169, that the action of a District Court finally determining under 4208 (b) the sentence to be imposed upon a defendant is a final, appealable order. For those reasons as well as those set out below, we hold that the District Court erred in the present case when, modifying its original oral 4208 (b) order, it fixed the final sentence in the absence of respondent and his counsel. It is plain that as far as the sentence is concerned the original order entered [375 U.S. 162, 165] under 4208 (b) is wholly tentative. That section merely provides that commitment of a defendant to the custody of the Attorney General "shall be deemed to be for the maximum sentence," but does not make that the final sentence. The whole point of using 4208 (b) is, in its own language, to get "more detailed information as a basis for determining the sentence to be imposed . . . ." (Emphasis supplied.) It is only after the Director of the Bureau of Prisons makes his report that the court makes its final decision as to what the sentence will be. Rule 43 of the Federal Rules of Criminal Procedure specifically requires that the defendant be present "at every stage of the trial including . . . the imposition of sentence . . . ." It is true that the same rule provides that a defendant's presence is not required when his sentence is reduced under Rule 35. But a reduction of sentence under Rule 35 is quite different from the final determination under 4208 (b) of what a sentence is to be. Rule 35 refers to the power of a court to reduce a sentence which has already become final in every respect. There is no such finality of sentence at a 4208 (b) preliminary commitment. The use of 4208 (b) postpones action as to the final sentence; by using that section the court decides to await studies and reports of a defendant's background, mental and physical health, etc., to assist the judge in making up his mind as to what the final sentence shall be. It is only then that the judge's final words are spoken and the defendant's punishment is fixed. It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance. This right, ancient in the law, is recognized by Rule 32 (a) of the Federal Criminal Rules, which requires the court to "afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment." This right would be largely lost in the 4208 proceeding if for administrative [375 U.S. 162, 166] convenience the defendant were not permitted to invoke it when the sentence that counts is pronounced. 4 We hold that it was error to impose this sentence in the absence of respondent and his counsel. Affirmed. Footnotes [Footnote 1 18 U.S.C. 4208 (b) provides: "If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section." [Footnote 2 312 F.2d 223. [Footnote 3 371 U.S. 966 ; 373 U.S. 902 . [Footnote 4 It is true that the House Committee on the Judiciary in reporting favorably on a proposed section identical to 4208 (b) indicated that it saw no necessity for a defendant being present when final action on his sentence was taken. H. R. Rep. No. 1946, 85th Cong., 2d Sess., p. 10. This section failed of passage in the House but an identical one was added by the Senate and adopted without discussion of the point in the Senate committee and conference reports. See S. Rep. No. 2013, 85th Cong., 2d Sess; H. R. Rep. No. 2579, 85th Cong., 2d Sess. No language supporting this position appeared in the Senate bill or in the Act itself. We are not inclined to expand the language of the section, and thereby make necessary a constitutional decision, by reading the silence of the Act as depriving a defendant of a right to urge upon the court reasons for leniency at the time when the judge at last has the relevant materials for decision before him. MR. JUSTICE HARLAN, concurring in the result. I agree with the result reached in this case, but not with all of the reasoning of my Brother BLACK'S opinion. More particularly, disagreeing as I do with the rationale of the Corey decision, post, p. 169, I draw no support from it for the conclusion here reached. The language of 4208 (b) is not explicit on the question whether a defendant must be allowed to be present when the District Court imposes final sentence. 1 It is, [375 U.S. 162, 167] however, clear that the statute does not contemplate that the district judge will have deliberated and decided upon an appropriate sentence at the time of the original commitment. As the first words of 4208 (b) make plain, the procedures outlined therein are called into play "if the court desires more detailed information as a basis for determining the sentence to be imposed . . . ." Although the statute refers later to "the sentence of imprisonment originally imposed," this is quite plainly intended merely to permit the district judge to impose as a final sentence the "maximum sentence of imprisonment prescribed by law" under which the defendant is "deemed to be" committed. The Corey case well illustrates the absurdity of any other conclusion; there the defendant was originally deemed to be committed for a term of 375 years on a conviction of making false claims against the Government. See post, p. 171. Once it is clear that a defendant is not actually sentenced until after the 4208 (b) inquiry during commitment is completed, the requirements of criminal justice, always subject to this Court's supervisory power over the federal courts, leave no doubt of his right to be present when a final determination of sentence is made. The elementary right of a defendant to be present at the imposition of sentence and to speak in his own behalf, which is embodied in Rule 32 (a) of the Federal Rules of Criminal Procedure, is not satisfied by allowing him to be present and speak at a prior stage of the proceedings which results [375 U.S. 162, 168] in the deferment of the actual sentence. Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant's words in his absence and give them due weight. Moreover, only at the final sentencing can the defendant respond to a definitive decision of the judge. Whether or not the Constitution would permit any other procedure it is not now necessary to decide. Congress not having spoken clearly to the contrary, 2 I concur in the judgment of the Court. [Footnote 1 Section 4208 (b) provides: "If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not [375 U.S. 162, 167] to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section." [Footnote 2 A bill now pending in Congress provides that the defendant's presence is not required at final sentencing but the defendant may be present in the discretion of the court. S. 1956, 88th Cong., 1st Sess. Neither the legislative history set out in the opinion of the majority, ante, p. 166, note 4, nor the pending proposal seems to me sufficient indication of congressional intent to require disregard of the important right involved in this case, particularly in light of the possible constitutional issues which would be raised. [375 U.S. 162, 169]

liberal

person

criminal_procedure

1977-097-02

United States Supreme Court CALIFORNIA v. SOUTHLAND ROYALTY CO.(1978) No. 76-1114 Argued: December 7, 1977Decided: May 31, 1978 [Footnote * Together with No. 76-1133, El Paso Natural Gas Co. v. Southland Royalty Co. et al.; and No. 76-1587, Federal Energy Regulatory Commission v. Southland Royalty Co. et al., also on certiorari to the same court. In 1925, Gulf Oil Corp. executed a lease under which it paid royalties for the exclusive right to produce and market oil and gas from certain land for 50 years. Thereafter, the lessors sold their mineral fee interest to respondents. In 1951 Gulf contracted to sell casinghead gas from the leased property to petitioner El Paso Natural Gas Co., an interstate pipeline. Subsequently, Gulf obtained from the Federal Power Commission a certificate of public convenience and necessity of unlimited duration authorizing the service to El Paso. When Gulf's original lease expired in 1975, its interest as lessee in the remaining gas reserves terminated and reverted to respondents. Just before the lease expired, respondents arranged to sell the remaining casinghead gas to an intrastate purchaser. El Paso, in order to preserve one of its sources of supply, petitioned the FPC for a determination that the remaining gas reserves could not be diverted to the intrastate market without abandonment authorization pursuant to 7 (b) of the Natural Gas Act (Act). The FPC agreed, holding that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, such flow could not be terminated unless the FPC authorized abandonment of service. On respondents' petition for review, the Court of Appeals reversed, holding that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas that respondents might own upon the lease's expiration. Held: The FPC acted within its statutory powers in requiring that respondents obtain permission to abandon interstate service. The issuance of the certificate of unlimited duration created a federal obligation to serve the interstate market until abandonment authorization had been obtained, and the FPC reasonably concluded that under the Act the obligation to continue service attached to the [436 U.S. 519, 520] gas, not as a matter of contract but as a matter of law, and bound all those with dominion and power of sale over the gas, including the lessors to whom it reverted. The service obligation imposed by the FPC survived the expiration of the private agreement that gave rise to the FPC's jurisdiction. Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137 . Pp. 523-531. 543 F.2d 1134, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 531. STEWART and POWELL, JJ., took no part in the consideration or decision of the cases. Randolph W. Deutsch reargued the cause for petitioners in No. 76-1114. With him on the briefs were Janice E. Kerr and J. Calvin Simpson. Deputy Solicitor General Barnett reargued the cause for petitioner in No. 76-1587. On the briefs were Solicitor General McCree, Richard A. Allen, Robert W. Perdue, and Philip R. Telleen. C. Frank Reifsnyder, Arthur R. Formanek, and Richard S. Morris filed briefs for petitioner in No. 76-1133. J. Evans Attwell reargued the cause for respondents in all cases. With him on the brief were Martin N. Erck, Sherman S. Poland, Bernard A. Foster III, and Roger L. Brandt. William Pannill and F. H. Pannill filed a brief for respondent Crane County Development Co. John L. Hill, Attorney General, reargued the cause for the State of Texas as amicus curiae urging affirmance in all cases. With him on the brief were David M. Kendall, First Assistant Attorney General, Steve Van, Assistant Attorney General, and Frank C. Cooksey.Fn Fn [436 U.S. 519, 520] Frederick Moring and James A. Wilderotter filed a brief for the Associated Gas Distributors as amicus curiae urging reversal in all cases. Briefs of amici curiae urging affirmance were filed by James R. Patton, Jr., Harry E. Barsh, Jr., Edwin W. Edwards, Governor, and William J. Guste, Jr., Attorney General, for the State of Louisiana; and by Toney [436 U.S. 519, 521] Anaya, Attorney General, Vernon O. Henning, Assistant Attorney General, and William O. Jordan, Special Assistant Attorney General, for the State of New Mexico. Peter H. Schiff and Richard A. Solomon filed a brief for the Public Service Commission of the State of New York as amicus curiae. [436 U.S. 519, 521] MR. JUSTICE WHITE delivered the opinion of the Court. In 1925 the owners of certain acreage in Texas executed a lease which gave to Gulf Oil Corp., as lessee, the exclusive right to produce and market oil and gas from that land for the next 50 years. 1 Gulf was entitled to drill wells, string telephone and telegraph wires, and build storage facilities and pipelines on the land. Gulf would also have "such other privileges as are reasonably requisite for the conduct of said operations." App. 135. In exchange, the owners were to receive a royalty based on the quantity of natural gas produced and the number of producing wells, as well as other royalties and payments. The following year, the owners of the property sold one-half of their mineral fee interest to respondent Southland Royalty Co. and the rest to other respondents. In 1951 Gulf contracted to sell casinghead gas from the leased property to the El Paso Natural Gas Co., an interstate pipeline. After this Court's decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), Gulf applied for a certificate of public convenience and necessity from the Federal Power Commission authorizing the sale in interstate commerce of 30,000 Mcf per day. By order dated May 28, 1956, the Commission granted a certificate of unlimited duration, and this certificate was among those construed as "permanent" by [436 U.S. 519, 522] this Court in Sun Oil Co. v. FPC, 364 U.S. 170, 175 (1960). 2 Gulf entered into a second contract to sell additional volumes of gas to El Paso in 1972, and obtained a certificate of unlimited duration for those volumes in 1973. The original 50-year lease obtained by Gulf expired on July 14, 1975, and, under local law, the lessee's interest in the remaining oil and gas reserves terminated and reverted to respondents. See Gulf Oil Corp. v. Southland Royalty Co., 496 S. W. 2d 547 (Tex. 1973). Just prior to expiration of the lease, respondents arranged to sell the remaining casinghead gas to an intrastate purchaser, at the higher prices available in the intrastate market. El Paso, in order to preserve one of its sources of supply, then filed a petition with the Commission seeking a determination that the remaining gas reserves could not be diverted to the intrastate market without abandonment authorization pursuant to 7 (b) of the Natural Gas Act of 1938, 52 Stat. 824, as amended, 15 U.S.C. 717f (b) (1976 ed.). 3 The Commission agreed with this contention, relying on the "principle established by Section 7 (b) that `service' may not be abandoned without our permission and approval." El Paso Natural Gas Co., 54 F. P. C. 145, 150, 10 P. U. R. 4th 344, 348 (1975). The Commission held that respondents could not, [436 U.S. 519, 523] upon termination of the lease, sell gas in intrastate commerce without prior permission from the Commission under 7 (b) of the Natural Gas Act and that Gulf was also obligated to seek abandonment permission. The Commission reaffirmed this view in an order denying rehearing, but added language insuring that any deliveries of gas to El Paso during the period that the Commission's order was under review would not constitute a dedication of those reserves to the interstate market. El Paso Natural Gas Co., 54 F. P. C. 2821, 11 P. U. R. 4th 488 (1975). On respondents' petition for review, the Court of Appeals for the Fifth Circuit reversed. Southland Royalty Co. v. FPC, 543 F.2d 1134 (1976). The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and other respondents might own upon expiration of the lease. Because of the importance of the question presented to the authority of the Federal Power Commission, now the Federal Energy Regulatory Commission, we granted the petition for certiorari. 433 U.S. 907 . We reverse. The fundamental purpose of the Natural Gas Act is to assure an adequate and reliable supply of gas at reasonable prices. Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 147 , 151-154 (1960); Atlantic Refining Co. v. Public Serv. Comm'n of New York, 360 U.S. 378, 388 (1959). To this end, not only must those who would serve the interstate market obtain a certificate of public convenience and necessity but also, under 7 (b) of the Act: "No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance [436 U.S. 519, 524] of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment." 15 U.S.C. 717f (b) (1976 ed.). The Commission may therefore control both the terms on which a service is provided to the interstate market and the conditions on which it will cease: "An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which `gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval.'" Sunray Mid-Continent Oil Co., supra, at 156. The Act was "so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges." Atlantic Refining Co. v. Public Serv. Comm'n of New York, supra, at 388. The jurisdiction of the Commission extends to the transportation of natural gas in interstate commerce or the sale in interstate commerce for resale to consumers. 1 (b), 15 U.S.C. 717 (b) (1976 ed.). Gas which flows across state lines for resale is dedicated to interstate commerce regardless of the intentions of the producer. California v. Lo-Vaca Co., 379 U.S. 366 (1965). The Court there approved an approach to questions of the Commission's jurisdiction based on the physical flow of the gas: "We said in Connecticut Co. v. Federal Power Comm'n, 324 U.S. 515, 529 , `Federal jurisdiction was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.' And that is the test we have followed under both the Federal Power Act and the Natural Gas Act, except as Congress itself [436 U.S. 519, 525] has substituted a so-called legal standard for the technological one. Id., at 530-531." Id., at 369. The Court reasoned that in the circumstances of that case, 4 "[t]he fact that a substantial part of the gas will be resold [in interstate commerce] . . . invokes federal jurisdiction at the outset over the entire transaction." Ibid. In this litigation the Commission held that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow could not be terminated unless the Commission authorized an abandonment of service. The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate. The expiration of a lease on the field of gas did not affect the obligation to continue the flow of gas, a service obligation imposed by the Act. We think that the Commission's interpretation of the abandonment provision of the Natural Gas Act is a permissible one. In Sunray Mid-Continent Oil Co. v. FPC, the Court recognized that the obligation to serve the interstate market imposed by a certificate of unlimited duration could not be terminated by private contractual arrangements. In that case, a producing company which had contracted with a pipeline to supply gas for 20 years sought a certificate from the Commission limited to that period. The Commission insisted on a permanent certificate; and this Court upheld its authority to do so, holding that even after the contract had expired, the producer would remain under an obligation to supply gas to [436 U.S. 519, 526] the pipeline, unless permission to abandon service had been obtained. The obligation on the producer which survived after the contract term "will not be one imposed by contract but by the Act." 364 U.S., at 155 . The obligation to continue the service despite the provisions of the sales contract was held essential to effectuate the purposes of the Act; otherwise producers and pipelines would be free to make arrangements that would circumvent the ratemaking and supply goals of the statute. Id., at 142-147. Similar principles control this litigation. This issuance of a certificate of unlimited duration covering the gas at issue here created a federal obligation to serve the interstate market until abandonment authorization had been obtained. The Commission reasonably concluded that under the statute the obligation to continue service attached to the gas, not as a matter of contract but as a matter of law, and bound all those with dominion and power of sale over the gas, including the lessors to whom it reverted. Just as in Sunray, the service obligation imposed by the Commission survived the expiration of the private agreement which gave rise to the Commission's jurisdiction. Respondents seek to distinguish Sunray on the ground that the producer in that case owned all of the gas covered by the certificate, but the central theme of that opinion is that the Act is concerned with the continuation of "service" rather than with particular sales of gas or contract rights. The Court traced the language of the statute to show that "all the matters for which a certificate is required - the construction of facilities or their extension, as well as the making of jurisdictional sales - must be justified in terms of a `service' to which they relate." Id., at 150. The Court specifically noted that " 7 (b) does not refer to the abandonment of the continuation of sales, but rather to the abandonment of `services.'" Id., at 150n. 17. The Commission "[had] long drawn a distinction between the underlying service to the public a natural gas company performs and the specific manifestation [436 U.S. 519, 527] - the contractual relationship - which that service takes at a given moment." Id., at 152. Just as the federal obligation to continue service was held paramount to private arrangements in Sunray, that obligation must be recognized here. Once the gas commenced to flow into interstate commerce from the facilities used by the lessees, 7 (b) required that the Commission's permission be obtained prior to the discontinuance of "any service rendered by means of such facilities." Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission's permission. Respondents contend that the gas at issue here was never impressed with an obligation to serve the interstate market because it was never "dedicated" to an interstate sale. The core of their argument is that "no man can dedicate what he does not own." Brief for Respondent Southland Royalty Co. et al. 8. This maxim has an appealing resonance, but only because it takes unfair advantage of an ambiguity in the term "dedicate." For most lawyers, as well as laymen, to "dedicate" is to "give, present, or surrender to public use." Webster's Third New International Dictionary 589 (1961). But gas which is "dedicated" pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the "just and reasonable" rates specified by 4 (a) of the Act, 15 U.S.C. 717c (a) (1976 ed.). Judicial review insures that those rates will not be confiscatory. See FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942); FPC v. Hope Gas Co., 320 U.S. 591, 602 -603 (1944). Thus, by "dedicating" gas to the interstate market, a producer does not effect a gift or even a sale of that gas, but only changes its regulatory status. 5 [436 U.S. 519, 528] Here, the lessee dedicated the gas by seeking and receiving a certificate of unlimited duration from the Commission. Respondents apparently had no objection, for they could have intervened in those proceedings but did not do so. El Paso Natural Gas Co., 54 F. P. C. 917, 919 n. 3 (1975). Respondents also appear to argue that they should not be viewed as "natural gas companies" with respect to the Waddell Ranch gas because they have not voluntarily committed any act that would place them within the Commission's jurisdiction. As we have seen, this argument is somewhat beside the point, for the obligation to serve the interstate market had already attached to the gas, and respondents became obligated to continue that service when they assumed control of the gas. In the Commission's language, "the dedication involved is not the dedication of an individual party or producer, but the dedication of gas." 54 F. P. C., at 149, 10 P. U. R. 4th, at 348. In any event, we perceive no unfairness in holding respondents, as lessors, responsible for continuation of the service until abandonment is obtained. Respondents were "mineral lease owners who entered into a lease that permitted the lease holders to make interstate sales." 54 F. P. C., at 920. They did not object when Gulf sought a certificate from the Commission. Indeed, as the Commission pointed out, Gulf may even have been under a duty to seek interstate purchasers for the gas. Id., at 919. Gas leases are typically construed to include a duty diligently to develop and market, see, e. g., 5 H. Williams & C. Meyers, Oil and Gas Law 853 (1977), and at the time the certificate was sought the interstate market was the major outlet for gas, see Atlantic Refining Co. v. Public Serv. Comm'n of New York, 360 U.S., at 394 . Having authorized Gulf to make interstate [436 U.S. 519, 529] sales of gas, respondents could not have expected those sales to be free from the rules and restrictions that from time to time would cover the interstate market. Cf. Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467, 482 (1911). 6 In Sunray, the Court discussed the "practical consequences" for the consumer if the term of the sales contract limited the term of the certificate. 364 U.S., at 143 , 142-147. The Court reasoned: "If petitioner's contentions . . . were . . . sustained, the [436 U.S. 519, 530] way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date, untrammelled by Commission regulation, to reassess whether it desired to continue serving the interstate market." Id., at 142. A "local economy which had grown dependent on natural gas as a fuel" might experience disruption or significantly higher prices. Id., at 143. These observations are equally pertinent to private arrangements by way of leases. If the expiration of a lease to mineral rights terminated all obligation to provide interstate service, producers would be free to structure their leasing arrangements to frustrate the aims and goals of the Natural Gas Act. Respondents suggest that the Commission could require a voluntary assumption of the service obligation by the lessor as a condition to certificates issued in the future. It is obvious that this solution does nothing to protect those communities presently depending on the flow of gas pursuant to a certificate of unlimited duration already issued. Moreover, the Court questioned in Sunray whether the conditioning power could be used to achieve indirectly what the Act did not authorize the Commission to do directly. Id., at 152. In light of this tension, the Court concluded that "the Commission's power to protect the public interest under 7 (e) need not be restricted to these indirect and dubious methods." Ibid. We conclude that the Commission acted within its statutory powers in requiring that respondents obtain permission to abandon interstate service. "A regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law." United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 400 (1965). By tying the concept of dedication to local property law, respondents would cripple the authority of the Commission at a time when the need for decisive action is greatest. Guided by [436 U.S. 519, 531] Sunray, we believe that the structure and purposes of the Natural Gas Act require a broader view of the Commission's authority. The decision of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEWART and MR. JUSTICE POWELL took no part in the consideration or decision of these cases. Footnotes [Footnote 1 The "Waddell" lease, executed on July 14, 1925, covered 45,771 acres in Crane County, Tex. In the same year Gulf executed an identical lease, the "Goldsmith" lease, with the owners of 19,840 acres in Ector County, Tex. The gas remaining at the expiration of both leases is at issue in this litigation, but because the parties are in agreement that there are no material differences in the language or history of these leases, we shall discuss only the Waddell lease. [Footnote 2 The Commission's order of May 28, 1956, had granted more than 100 certificates with identical language. This Court's decision in Sun Oil, though prompted by a dispute over a specific certificate, interpreted the Commission's order as it applied to the entire "batch of certificates." 364 U.S., at 175 . [Footnote 3 Texaco, Inc., owner of a 25% interest in the reversion under the Goldsmith Lease, see n. 1, supra, also filed a petition with the Commission, seeking a declaration that upon expiration of the lease the fee owners would be free to sell the remaining gas to intrastate purchasers. Although Texaco's interest was adverse to El Paso, Texaco's petition raised the same issues as El Paso's petition and was therefore consolidated with it. The State of California and its Public Utilities Commission intervened in the consolidated proceeding. [Footnote 4 In California v. Lo-Vaca Co., an interstate pipeline had entered into a private contractual arrangement with a producer that all gas purchased pursuant to the agreement would be for internal use only. Despite this explicit reservation intended to remove this gas from the jurisdiction of the Commission, the Court held that the Commission had jurisdiction over the entire transaction because at least some part of the contract gas, physically commingled in the pipeline with gas from other sources, would be sold to other interstate purchasers. [Footnote 5 An analogy in state law may be found in the power of a tenant to seek a change in the zoning status of leased property. See, e. g., Newport [436 U.S. 519, 528] Associates, Inc. v. Solow, 30 N. Y. 2d 263, 283 N. E. 2d 600 (1972), cert. denied, 410 U.S. 931 (1973); Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 258, 137 A. 2d 280, 283 (1958). [Footnote 6 Moreover, the type of regulation which the Commission has here imposed is not without precedent. As we recognized in Sunray, 7 (b) of the Natural Gas Act "follows a common pattern in federal utility regulation." 364 U.S., at 141 -142. Section 1 (18) of the Interstate Commerce Act, 49 U.S.C. 1 (18), similarly provides that "no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment." At a very early date the Interstate Commerce Commission interpreted this provision to require that a certificate of abandonment be obtained prior to the cessation of operations over leased tracks, even though the lease had expired by its own terms. Chicago & Alton R. Co. v. Toledo, Peoria & Western R. Co., 146 I. C. C. 171 (1928). In Lehigh Valley R. Co. Proposed Abandonment of Operation, 202 I. C. C. 659 (1935), the Commission held that even a lessor which had ceased to operate as a railroad prior to enactment of the Interstate Commerce Act would be required to seek permission to abandon a railroad line which had reverted to it upon expiration of a lease. Long before Gulf applied for its certificate, this Court approved these decisions. See Smith v. Hoboken R., Warehouse & S. S. Connecting Co., 328 U.S. 123, 130 (1946) ("[A] certificate is required under 1 (18) whether the lessee or the lessor is abandoning operations"); Thompson v. Texas Mexican R. Co., 328 U.S. 134, 144 -145 (1946) ("[T]he fact that the trackage contract was entered into in 1904 prior to the passage of the Act is immaterial; the provisions of the Act, including 1 (18), are applicable to contracts made before as well as after its enactment"). These precedents demonstrate that the specific type of obligation imposed here - an obligation to continue interstate service until abandonment has been obtained - is within the range of regulatory possibilities that must be anticipated by one profiting from interstate operations. MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting. The disparity between the regulated price of natural gas in the interstate market and the unregulated price in the Texas market gives this case its importance. 1 The legal issue depends on the meaning of 7 (b), the abandonment provision of the Natural Gas Act. 2 Speaking for the United States [436 U.S. 519, 532] Court of Appeals for the Fifth Circuit, Judge Clark framed the question in this way: "Does the lessee under a 50-year fixed-term mineral lease, by making certificated sales of leasehold natural gas in interstate commerce, thereby dedicate to interstate commerce the gas which remains in the ground at the end of the 50th year?" Southland Royalty Co. v. FPC, 543 F.2d 1134, 1136 (1976). In my opinion, the Fifth Circuit correctly answered that question in the negative and ruled that the lessors did not have to seek the Commission's abandonment approval under 7 (b). Through two separate leases executed in 1925, Gulf Oil Corp. obtained the right to explore, produce, and market oil and gas from specified acreage in Texas. 3 The leases were for a fixed term of 50 years, and the reversionary interests in the minerals were shared by a number of fee owners (respondents), of which Southland Royalty Co. is the largest. 4 As lessors of the property, respondents received a royalty based on the quantity of natural gas produced and the number of producing wells. 5 Gulf's interest in the leased gas terminated, as a matter of Texas law, in 1975, and the mineral rights reverted to respondents. See Gulf Oil Corp. v. Southland Royalty Co., 496 S. W. 2d 547 (Tex. 1973). In 1951, well before its leasehold interest expired, Gulf [436 U.S. 519, 533] contracted to sell casinghead gas 6 to the El Paso Natural Gas Co., an interstate pipeline. 7 Thereafter, Gulf applied for, and the Federal Power Commission issued, a certificate of public convenience and necessity authorizing its sale of natural gas to El Paso, to be effective as long as Gulf continued its authorized operations in accordance with the statute and applicable regulations. See n. 13, infra. The price of the gas sold by Gulf to El Paso was then regulated by the Commission. The price of gas on the intrastate market was, however, not subject to such regulation. Shortly before the expiration of the leases, Southland and the other mineral fee owners therefore made plans to sell their casinghead gas in the intrastate market as soon as the leases expired. 8 In order to preserve one of its sources of supply, El Paso filed a petition with the Commission seeking a determination that the leasehold gas had been dedicated to interstate commerce and could not be withdrawn from that market without Commission approval. 9 The Commission held that Southland and the other mineral interest owners may not divert leasehold gas into the local market without prior Commission approval. The Commission noted that its decision was not supported by direct [436 U.S. 519, 534] precedent, but reasoned that Gulf had made a dedication of the leasehold gas which imposed a service obligation on the gas itself, rather than on any particular party. 10 On respondents' petition for review, the Court of Appeals reversed. The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and the other reversioners might own upon expiration of the lease. It rejected the Commission's argument that since Gulf had an unquantified right during the 50-year term, it had a legal right to withdraw all of the leased gas, and therefore was empowered to dedicate the entire supply to the interstate market. The court reasoned that Gulf's interest in the gas was contingent upon its removal within 50 years and that its right to dedicate the gas to interstate commerce was subject to the same contingency. 11 The Commission's alternative argument that the acceptance of royalty payments constituted ratification of the dedication to interstate commerce was rejected on the ground that the holders of the reversionary interest had no right to control Gulf's sale of the gas during the lease term. In this Court, petitioners 12 argue that a lessee's acceptance [436 U.S. 519, 535] of a certificate of convenience and necessity of unlimited duration creates a service obligation which the lessors may never abandon without Commission authorization. They rely primarily on this Court's decision in Sunray Mid-Continental Oil Co. v. FPC, 364 U.S. 137 ; secondarily on somewhat analogous cases arising under the Interstate Commerce Act; and finally on their analysis of the practical consequences of the Court of Appeals' interpretation of the statute. I consider these arguments in turn. I Although Sunray Oil is of immediate concern, that decision must be considered in the context of the jurisdictional development of the Natural Gas Act that began in 1954 with Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 . In Phillips, the Court held that sales of natural gas by an independent producer to an interstate pipeline were subject to the jurisdiction of the Federal Power Commission. The Court rejected the independent producer's claim that the Act was concerned only with regulating interstate pipelines and, instead, held that the FPC's jurisdiction was based on the broader concept of interstate "sales" of natural gas. One obvious result of Phillips was the sudden expansion of the Commission's jurisdictional responsibilities. Permian Basin Area Rate Cases, 390 U.S. 747, 756 -757. 13 Less obviously, but perhaps more importantly, [436 U.S. 519, 536] it marked the first step in the development of a regulatory scheme for natural gas that is unique in public utility regulation. As Mr. Justice Harlan observed, "[p]roducers of natural gas cannot usefully be classed as public utilities." Id., at 756. "Unlike other public utility situations, the relationship which ultimately may subject the independent producer to regulation under the Natural Gas Act has its usual inception in a contract between a producer . . . of natural gas . . . and an interstate pipeline . . . ." 5 W. Summers, Law of Oil and Gas 924, p. 7 (1966). But while the voluntary sale of natural gas to an interstate pipeline is the event that normally activates the jurisdiction of the Commission, 14 the contractual terms of the sale do not define the limits of that jurisdiction. In Sunray Oil, the Court held that a natural gas company had made a dedication of gas to interstate commerce of unlimited duration even though its sales contract with the interstate pipeline was for a fixed term of 20 years. The company had applied to the Commission for a limited certificate of convenience and necessity authorizing interstate [436 U.S. 519, 537] sales only for the term of the contract. The Commission, however, tendered the company an unlimited certificate. The Court ruled that by accepting that certificate and by exercising the authority granted by it, the company undertook a service obligation that survived the expiration of the 20-year contract and that it could not abandon without Commission approval. The Court explained that the company's statutory obligation was not limited to the contractual commitment it had voluntarily assumed. "[T]he service in which the producer engages [the sale of natural gas] is distinct from the contract which regulates his relationship with the transmission company in performing the service." 364 U.S., at 153 . The duty to continue that service is an obligation imposed by the Act, not by contract. Id., at 155. 15 And later in the opinion the Court added: "An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which `gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself.' [Atlantic Refining Co. v. Public Serv. Comm'n of New York,] 360 U.S., at 389 ." Id., at 156. [436 U.S. 519, 538] The petitioners argue that like reasoning controls this case. Because the certificate issued to Gulf was not limited by the duration of its leasehold interests, they contend that respondents must supply leasehold gas to El Paso until they obtain permission to abandon that service pursuant to 7 (b) of the Act. The argument misconceives the nature of the issue resolved by Sunray. In Sunray the issue before the Court was whether a private contract between a producer and a pipeline company could supplant the Commission's authority to determine how long the producer's gas would be subject to interstate dedication. There was no question that the producer had dedicated the gas to the interstate market, and there was no question that the producer owned the gas that he had dedicated. In the case at hand, however, respondents have not themselves dedicated any gas to interstate commerce, and they strenuously urge that Gulf's power to dedicate their gas was limited by the character of Gulf's leasehold interest. The issue here, therefore, is one step removed from that in Sunray. Nevertheless petitioners claim that Sunray controls. Their "syllogism" is that since a private contract is not determinative of the scope of a dedication, a private lease should not be determinative of whether there has been a dedication. But the syllogism is a non sequitur. 16 Moreover, Sunray cannot, consistently with the purposes and structure of the Natural Gas Act, be expanded in this fashion. The Natural Gas Act, as this Court has repeatedly stated, does not represent an exercise of Congress' full power under the Commerce Clause. See, e. g., FPC v. Panhandle Eastern [436 U.S. 519, 539] Pipe Line Co., 337 U.S. 498, 502 . Instead, 1 (b) limits the Act's reach to interstate transportation and sales of natural gas, 15 U.S.C. 717 (b) (1976 ed.), and this same restriction is reflected in the abandonment provision. Section 7 (b) provides that "[n]o natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities . . . ." 15 U.S.C. 717f (b) (1976 ed.) (emphasis added). "Natural gas company," in turn, is defined as "a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale." 15 U.S.C. 717a (6) (1976 ed.) (emphasis added). While Gulf, like the oil company in Sunray, is a "natural gas company" within this definition, it is clear that, at least prior to the lease termination, the respondents were not. They clearly did not transport gas, and their retention of a standard, fixed royalty interest did not constitute a "sale" of gas in interstate commerce. 17 This latter point follows from the rule that the royalty provisions of an oil and gas lease are not subject to the Natural Gas Act. Mobil Oil Corp. v. FPC, 149 U.S. App. D.C. 310, 463 F.2d 256 (1972), cert. denied sub nom. Mobil Oil Corp. v. Matzen, 406 U.S. 976 . The reasoning of the Court of Appeals in that case is applicable here: "When we come to an ordinary lease by the landowner to the producer there is neither a `customary' sale in interstate commerce nor its equivalent in economic effect. Such a lease is a transaction that is itself customary and conventional, but one that precedes the `conventional' sales in interstate commerce with which Congress was concerned, indeed even precedes the `production and gathering' which 1 (b) visualized as preceding the sale [436 U.S. 519, 540] in interstate commerce over which jurisdiction was being established. . . . . . "The FPC is limited by the provision establishing its jurisdiction, and we do not find in that provision, rooted as it is in a sale in interstate commerce, any basis for reaching out to cover the landowner's lease or its royalty payments." 18 The Commission does not challenge this rule; instead, it argues that "lessors who succeed to the interest of their natural gas company lessees would be natural gas companies within the meaning of the Act." Brief for Petitioner in No. 76-1587, p. 29. But neither the Commission nor any court has held that a lessor succeeds to the interest of his lessee when a lease expires by its terms. The Commission has held that a purchaser or assignee charged with notice of the burdens imposed on the acquired estate by its former owner must seek abandonment approval under 7 (b). See, e. g., Cumberland Natural Gas Co., 34 F. P. C. 132 (1965). The Commission has reasoned that, in these situations, the successor-in-interest has "stepp[ed] into the shoes of his predecessor." Graridge Corp., 30 F. P. C. 1156, 1162 (1963); see also Phillips Petroleum Co. v. FPC, 556 F.2d 466 (CA10 1977); but see El Paso Natural Gas Co., 48 F. P. C. 1269 (1972). That analysis does not apply in this case. The character of the fee owner's reversionary interest was defined when the leasehold estate was created. Respondents did not "step into" Gulf's leasehold interest; that interest expired. This is, of [436 U.S. 519, 541] course, merely another way of expressing the well-settled doctrine of property law that "one having a limited estate in land cannot, as against the person entitled in reversion or remainder, create an estate to endure beyond the normal time for termination of his own estate." 1 H. Tiffany, Law of Real Property 153, p. 247 (3d ed. 1939). 19 Petitioners rejoin that strict concepts of property law or state definitions of ownership cannot control the scope of the federal Act. But this proposition, though valid, does not support petitioners' position. As the Court has previously stated, "[a] regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law," United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 400 , and the Court must instead look to the economic reality of the transaction. But in this case respondents, as royalty owners, had "no control over any incident of such [gas] sale either as to the quantity to be sold, the price to be paid, the identity of the purchaser or whether it [should] be sold in interstate or intrastate commerce." Mobil Oil Corp. v. FPC, supra, at 316, 463 F.2d, at 262. There is no claim that the lease was terminated prematurely in order to withdraw the gas from the interstate market or to evade the Commission's ratemaking authority. And, in fact, this case does not even present the specter of evasion or bad faith since the lease was negotiated at arm's length and executed years before the statute was passed. My conclusion that Congress did not intend to allow a lessee to dedicate a lessor's gas in this situation is supported not [436 U.S. 519, 542] only by the statutory provisions discussed above, but also by the legislative history which clearly counsels restraint in judicial interpretation of the Act. Both the House and Senate Reports state that the Act only "provides for regulation along recognized and more or less standardized lines. There is nothing novel in its provisions, and it is believed that no constitutional question is presented." H. R. Rep. No. 709, 75th Cong., 1st Sess., 3 (1937); S. Rep. No. 1162, 75th Cong., 1st Sess., 3 (1937). I cannot believe that, in a statute described as containing "nothing novel," Congress intended to allow a natural gas company, operating under a fixed-term lease, to impose a permanent service burden on the royalty owner over that party's objection. II Based on the preceding analysis, it is apparent that this Court's railroad abandonment cases do not support petitioners. They rely on Smith v. Hoboken R., Warehouse & S. S. Connecting Co., 328 U.S. 123 , and Thompson v. Texas Mexican R. Co., 328 U.S. 134 , two companion cases decided in 1946, in which the Court held that 1 (18) of the Interstate Commerce Act 20 required Commission approval of the abandonment of the lessee's operations and the lessor had standing to seek that approval. 21 These cases make it clear that a lessee's statutory [436 U.S. 519, 543] duty to continue operations until a regulatory commission has given its approval to a proposed abandonment may qualify the contractual rights of the lessor. The cases do not, however, shed any light on the question whether a regulated lessee may impose any statutory duties on an unregulated lessor. The railroad cases did not involve any question concerning the scope of the dedication to interstate commerce, or any attempt to impose an obligation on a party which was not subject to the Commission's jurisdiction. The question was which of the two companies subject to the jurisdiction of the Commission should operate - not whether the operation should continue. Neither the lessor nor the lessee wanted to have the regulated operation cease; both recognized that the common carrier's obligation to provide service to the public existed independently of the lease and survived its termination. In short, in neither case was there any question but that the lessor was a "common carrier" under the Interstate Commerce Act and subject to the obligations imposed by the Act. The importance of this distinction is highlighted by subsequent lower court cases interpreting the railroad abandonment provision of 1 (18). In particular, the Court of Appeals for the Second Circuit has concluded that Hoboken and Thompson do not "hold or imply that a noncarrier, by merely leasing its properties to a carrier, becomes a `carrier by railroad,' thus subjecting itself to an obligation to carry on the operations of its lessee's railroad . . . ." Meyers v. Famous Realty, Inc., 271 F.2d 811, 814 (1959), cert. denied, 362 U.S. 910 ; 22 [436 U.S. 519, 544] see also City of New York v. United States, 337 F. Supp. 150, 153 (EDNY 1972) (three-judge panel); Friendly, Amendment of the Railroad Reorganization Act, 36 Colum. L. Rev. 27, 47-49 (1936). Thus, instead of supporting the petitioners' position in this case, the cases dealing with railroad abandonment merely illustrate the extent to which petitioners' claim is unprecedented. III Finally, petitioners argue that the Court of Appeals' ruling should be reversed in order to prevent parties from diverting natural gas production from the interstate market at will. The answer to this contention is implicit in the discussion of Sunray and the Natural Gas Act, Part I, supra, but I will address it separately because this Court has long recognized that one of the central purposes of the Act is "to protect consumers against exploitation at the hands of natural gas companies." FPC v. Hope Gas Co., 320 U.S. 591, 610 . The Commission argues that unless abandonment authorization is required in this case, the natural gas companies will be able to manipulate and restructure their leases to avoid the Commission's ratemaking authority. There are three answers to this concern. First, there are few short-term development leases in existence. The magnitude of the capital investment required for exploration and development of oil and gas production makes it extremely unattractive for any natural gas company to accept a short-term production lease. Indeed, the literature [436 U.S. 519, 545] indicates that the fixed-term leases involved in this case are an almost extinct species, and that development leases typically survive for as long as production is economically feasible. 23 Second, nothing in the Fifth Circuit's decision affects the Commission's power to require future applicants for certificates to describe the details of their supply arrangements and to withhold approval pending the receipt of appropriate evidence of consent to an unlimited dedication by all interested parties. See Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137 . 24 Finally, the decision of the Fifth Circuit does not in any way allow natural gas companies to exercise an "unregulated choice" over whether to continue serving the interstate market. See FPC v. Moss, 424 U.S. 494, 506 (BURGER, C. J., concurring in judgment). The Commission's error in this case was its conclusion that the need to obtain abandonment authorization was "like an ancient covenant running with the land," El Paso Natural Gas Co., 54 F. P. C. 145, 150, 10 P. U. R. 4th 344, 348 (1975), which enabled a lessee for a limited term to impose [436 U.S. 519, 546] a burden on the lessor's interest after the expiration of the lease. As both the language and history of the Act show, Congress did not intend to work such a revolution in property interests touching natural gas. It confined the applicability of the abandonment provisions to "natural gas companies." But that term is sufficiently flexible to enable the Commission to analyze the economic and practical significance of transfers of interests in natural gas regardless of the particular label applied to any transfer. See United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392 . 25 The Commission has ample authority to prevent manipulation of the Act's regulatory provisions. Despite the Act's flexibility, I would not stretch it to reach this case. The lessors, as royalty owners, had no control over the interstate sales, and even with the lease running without interruption, the lessee's interest was limited to a 50-year term. There is no authority in the statute for imposing a permanent service obligation on the lessors in this situation. Accordingly I would affirm the decision of the Court of Appeals. [Footnote 1 At the time the Court of Appeals for the Fifth Circuit delivered its opinion in this case, there was a "gross imbalance between controlled prices at which interstate natural gas [was] sold and the substantially higher values set by the free market for gas . . . ." Southland Royalty Co. v. FPC, 543 F.2d 1134, 1135 (1976) (citation omitted). Although the Federal Power Commission (now the Federal Energy Regulatory Commission) has taken some action to correct this imbalance, see National Rates for Natural Gas, 56 F. P. C. 2698, 15 P. U. R. 4th 21 (1976), aff'd sub nom. American Public Gas Assn. v. FPC, 186 U.S. App. D.C. 23, 567 F.2d 1016 (1977), a "substantial disparity" still exists. Brief for Petitioner in No. 76-1587, pp. 6-7, n. 9. [Footnote 2 "No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment." 15 U.S.C. 717f (b) (1976 ed.). [Footnote 3 See ante, at 521 n. 1. [Footnote 4 Southland acquired one-half of the mineral fee interest in the Waddell lease in 1926; the remaining fractional interests are owned by over 100 other companies and persons. The ownership of the reversionary mineral estate of the Goldsmith lease is also dispersed; Texaco, Inc., is apparently the largest single owner, having acquired a one-fourth interest in 1929. [Footnote 5 Respondents' royalty interest was 1/8 of 4 per Mcf (thousand cubic feet) for all casinghead gas produced and sold from the lease; they had no right to take gas in kind or to receive a royalty based on the price received by the lessee for the gas. App. 135-140. [Footnote 6 Casinghead gas is found in association with crude oil; it is to be distinguished from "gas-well gas." [Footnote 7 Gulf sold its gas from the Goldsmith lease to Phillips Petroleum Co., which processed the gas and sold it to El Paso, which in turn transported the gas in interstate commerce for subsequent resale. For the purposes of this case, the parties have agreed that there are no material differences between the Goldsmith and Waddell leases. See ante, at 521 n. 1. [Footnote 8 Southland entered into a contract with Intratex Gas Co. and Intrastate Pipeline Co., which primarily serves a distributor in Houston, Tex. [Footnote 9 Docket No. CP75-209, commenced by El Paso on January 20, 1975, related to the Waddell lease. Docket No. CI75-594, relating to the Goldsmith lease, was commenced by Texaco on April 8, 1975. Although the interest of Texaco was adverse to El Paso, its petition for a declaratory order raised the same issue as did the El Paso petition in No. CP75-209. [Footnote 10 "In our opinion the various mineral interest reversioners may not sell gas from the two leaseholds in intrastate commerce without prior permission and approval of the Commission. Although we have discovered no case directly on point, we are of the opinion that the cases and the purpose of the Natural Gas Act inevitably lead to this view. . . . [T]he dedication involved is not the dedication of an individual party or producer, but the dedication of gas." El Paso Natural Gas Co., 54 F. P. C. 145, 149, 10 P. U. R. 4th 344, 347-348 (1975). [Footnote 11 "To the extent that Gulf's present interest in all of the natural gas is contingent upon its removal within 50 years, the right to dedicate that gas removed to interstate commerce is likewise contingent. Whatever gas is left under the lease lands at the end of the 50 years is not Gulf's gas and, by the plain terms of the limited leasehold estate, never belonged to it from day one forward." 543 F.2d, at 1138. [Footnote 12 Petitioners in this case are the Commission, El Paso, and the State [436 U.S. 519, 535] of California, which intervened in the suit below on the ground that El Paso was one of its major suppliers of natural gas. [Footnote 13 After the decision in Phillips, the natural gas companies already supplying gas to the interstate market had to apply for Commission approval of that service. The certificate issued to Gulf in this case in 1956 was one of a large number which were issued in a post-Phillips consolidated proceeding. The certificate stated in relevant part: "The Commission orders "(A) A certificate of public convenience and necessity be and is hereby issued, upon the terms and conditions of this order, authorizing the sale by Applicant of natural gas in interstate commerce for resale, together with the operation of any facilities, subject to the jurisdiction of the [436 U.S. 519, 536] Commission, used for the sale of natural gas in interstate commerce, as hereinbefore described and as more fully described in the application and exhibits in this proceeding. "(B) The certificate issued herein shall be deemed accepted and of full force and effect, unless refused in writing and under oath by Applicant within 30 days from issuance of this order. "(C) The certificate is not transferable and shall be effective only so long as Applicant continues the acts or operations hereby authorized in accordance with the provisions of the Natural Gas Act, and the applicable rules, regulations and orders of the Commission." App. 37. See Sun Oil Co. v. FPC, 364 U.S. 170, 171 -172. In 1972, Gulf entered into a second contract with El Paso covering gas produced from wells covered by the leases in question, and the Commission granted Gulf another certificate covering sales under that contract. [Footnote 14 As this Court has previously noted, "the scheme of the Act was one which built the regulatory system on a foundation of private contracts." Sunray Oil, 364 U.S., at 154 ; see also United Gas Pipe Line Co. v. Mobil Gas Service Corp., 350 U.S. 332 . [Footnote 15 The Court's statement was made in response to the company's argument that United Gas Pipe Line Co. v. Mobil Gas Service Corp., supra, established the principle that the Act preserved the integrity of private contracts, and that therefore the Commission should not be allowed to compel it to enlarge its contractual undertaking. The holding in Mobil was that the seller could not file for a rate increase that would violate the terms of his contract. In Sunray, however, no violation of an existing contract was required or permitted by the Commission. [Footnote 16 The fact that Sunray's contract with its customers did not limit the scope of Sunray's dedication of its own gas does not logically compel any answer to the question whether Gulf had the power to dedicate gas owned by its lessors after the termination of the lease. See generally Conine & Niebrugge, Dedication under the Natural Gas Act: Extent and Escape, 30 Okla. L. Rev. 735, 821-825 (1977). [Footnote 17 Of course, the sale at issue is the alleged sale in this case; it is irrelevant that some of the respondents may have sold natural gas from other fields under other contracts in interstate commerce for resale. [Footnote 18 149 U.S. App. D.C., at 316-317, 463 F.2d, at 262-263. As the District of Columbia Circuit correctly observed, the issue is the extent to which royalty payments under a lease are related to the concept of a jurisdictional "sale" under the Act. An entirely different analysis might be appropriate if the lessee or lessor sought to abandon permanent facilities for the interstate transportation of gas, such as a pipeline. [Footnote 19 Petitioners argue that, since Gulf had the right to extract all the natural gas from the leased land, the respondents are, in effect, stepping into the remainder of a burdened interest. This argument is based on a highly selective reading of the lease agreement which simply ignores the express limitation placed on that right to extract "all" the gas. Gulf only had the right to produce and market the gas it found, developed, and sold during the specified 50-year term. See Southland Royalty Co. v. FPC, 543 F.2d, at 1137-1138. [Footnote 20 "Section 1 (18) provides in part: "[N]o carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment." 49 U.S.C. 1 (18). [Footnote 21 In both cases the Court relied on the alternative ground that the lessee was the debtor in a reorganization proceeding in which 77 of the Bankruptcy Act required the Commission to prepare the plan of reorganization. See Hoboken, 328 U.S., at 130 -133; Thompson, 328 U.S., at 142 -144. In the Thompson case, which involved a trackage agreement, the Court also relied on the Commission's jurisdiction under 5 (2) (a) of the Interstate Commerce Act to fix the terms and conditions, including rentals, for any trackage agreements created after the effective date of the Transportation Act of 1940. See 328 U.S., at 146 -150. [Footnote 22 The Commission points out that in Meyers the lessee had previously obtained abandonment authorization from the Interstate Commerce Commission. The Second Circuit did not, however, rely on that fact, see 271 F.2d, at 814, and, in any event, I fail to see how that distinction [436 U.S. 519, 544] supports the Commission's theory in this case, since it argues that the gas supply itself was dedicated to interstate commerce. Furthermore, it should be noted that Gulf did apply for abandonment authorization, an application which the Commission staff considered "superfluous." 54 F. P. C., at 151, 10 P. U. R. 4th, at 349. The Commission ruled that the application was appropriate on the ground that "[w]e should have all the significant parties before us . . . ." Ibid. The question whether Gulf was under a duty to request abandonment approval is not before us. [Footnote 23 See 3 H. Williams, Oil and Gas Law 601.1 (1977); Walker, The Nature of the Property Interests Created by an Oil Gas Lease in Texas, 7 Texas L. Rev. 1 (1928). [Footnote 24 Contrary to the Court's suggestion, this case has nothing whatsoever to do with the question in Sunray of "whether the conditioning power could be used to achieve indirectly what the Act did not authorize the Commission to do directly." Ante, at 530. In Sunray petitioner argued that the Commission could only approve what the applicant itself proposed. The Court rejected that argument. It then observed in passing that if it had accepted petitioner's position, the Commission could probably not have used its "conditioning" power to award a certificate of longer duration than that prayed for, since that would simply allow the Commission to accomplish indirectly what it could not accomplish directly. No one questions in this case the Commission's direct power to withhold a certificate pending receipt of evidence that the applicant has the power to make an unlimited dedication. Indeed, no one has ever suggested that that might be an issue. Sunray's observation with respect to indirect power is, therefore, simply irrelevant. [Footnote 25 In United Gas Improvement, producers of gas had long-term sales contracts with an interstate pipeline. After the Phillips decision, see supra, at 535-536, the parties withdrew their sales contracts and entered into lease arrangements which substantially preserved the terms of the prior contracts. The Court held that these transactions, however characterized by the parties, amounted to "sales" under the Act. Similarly, parties to a contract cannot avoid the Commission's jurisdiction simply by stating that their sale of natural gas in interstate commerce "`is not subject to the jurisdiction of the Federal Power Commission.'" See California v. Lo-Vaca Co., 379 U.S. 366, 367 -368. [436 U.S. 519, 547]

liberal

other

economic_activity

1952-064-01

United States Supreme Court CHAPMAN v. FEDERAL POWER COMM'N.(1953) No. 28 Argued: October 22, 1952Decided: March 16, 1953 The Corps of Engineers recommended to Congress a comprehensive plan for the development of the Roanoke River Basin for flood-control, power, and other purposes; but it did not clearly recommend that all projects be constructed by the United States. The Federal Power Commission concurred in this recommendation. In the Flood Control Act of 1944, Congress approved the plan and specifically authorized two projects not at Roanoke Rapids. Subsequently, the Commission ordered issuance of a license to a private power company to construct a hydroelectric generating plant at Roanoke Rapids, N.C. Held: 1. Petitioners, the Secretary of the Interior and an association of nonprofit rural electric cooperatives, had standing to institute this proceeding under 313 (b) of the Federal Power Act to set aside the Commission's order. Pp. 154-156. 2. Congress has not withdrawn, as to the Roanoke Rapids site, the jurisdiction of the Federal Power Commission to issue such a license. Pp. 156-172. 3. Under 7 (b) of the Federal Power Act, the Commission's concurrence in the recommendation of the Corps of Engineers did not preclude the Commission from issuing such a license. Pp. 172-174. 191 F.2d 796, affirmed. [Footnote * Together with No. 29, Virginia REA Association et al. v. Federal Power Commission et al., also on certiorari to the same court. The Federal Power Commission ordered issuance of a license to a private power company to construct a hydroelectric generating plant at Roanoke Rapids, N.C. 87 P. U. R. (N. S.) 469. The Court of Appeals denied a petition to set aside this order. 191 F.2d 796. This Court granted certiorari. 343 U.S. 941 . Affirmed, p. 174. [345 U.S. 153, 154] Gregory Hankin argued the cause and filed a brief for petitioner in No. 28. Robert Whitehead argued the cause and filed a brief for the Virginia REA Association et al., petitioners in No. 29. Bradford Ross argued the cause for the Federal Power Commission, respondent. With him on the brief were Willard W. Gatchell, John Mason and Howard E. Wahrenbrock. T. Justin Moore argued the cause for the Virginia Electric & Power Co., respondent. With him on the brief were George D. Gibson and Patrick A. Gibson. Charles F. Rouse and David W. Robinson submitted on brief for the Carolina Power & Light Co., respondent. Herbert B. Cohn submitted on brief for the Appalachian Electric Power Co., respondent. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. In these two cases, the Secretary of the Interior and an association of nonprofit rural electric cooperatives have challenged the authority of the Federal Power Commission to grant to the respondent power company, VEPCO, a license to construct a hydroelectric generating station at Roanoke Rapids, North Carolina. They claim that Congress, by approving a comprehensive plan set out in the Flood Control Act of 1944 for improvement of the Roanoke River Basin, has withdrawn all eleven sites proposed for development in the plan, including Roanoke Rapids, from the licensing jurisdiction of the Commission and has reserved them for public construction. The underlying premise, that the plan approved by Congress presupposed federal development of all sites included in the plan, also underlies petitioners' other main contention [345 U.S. 153, 155] here, that the Commission's concurrence in the plan constituted a determination by the Commission that the development of these water resources should be undertaken by the United States itself. Such a determination, they say, requires the Commission under 7 (b) of the Federal Power Act, 41 Stat. 1067, as amended, 49 Stat. 842, 16 U.S.C. 800 (b), to make investigations and submit its findings together with appropriate recommendations to Congress and in any event bars the Commission from approving applications for private construction of the project. Petitioners unsuccessfully raised these contentions, along with attacks on the Commission's findings not pressed here, before the Court of Appeals for the Fourth Circuit, which denied their petitions to set aside the Commission's order granting a license to VEPCO. United States v. Federal Power Comm'n, 191 F.2d 796. We granted certiorari, 343 U.S. 941 . The cases present questions of importance in that they involve a conflict of view between two agencies of the Government having duties in relation to the development of national water resources. Determination of the issues may affect a substantial number of important potential sites for the development of hydroelectric power. Cf. Rules Sup. Ct. 38 (5) (b). Both here and in the court below, petitioners' standing to raise these issues has been questioned. The Secretary of the Interior points to his statutory duty to act as sole marketing agent of power developed at public hydroelectric projects and not required for the operation of the project; 5 of the Flood Control Act of 1944 directs him to transmit and dispose of such power in a manner calculated to "encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles." 58 Stat. 890, 16 U.S.C. 825s. This provision, it is said, announces a congressional policy for the guidance of the Secretary that would [345 U.S. 153, 156] be disturbed by the respondent company's plan; thus a specific interest of the Secretary, in addition to his more general duties relating to the conservation and utilization of the Nation's water resources, is said to be adversely affected by the Commission's order. The REA Association, an association of cooperatives, asserts that, as an organization of consumers entitled, along with "public bodies," to a preference in sales by the Secretary under 5, it has a substantial interest in the development of low-cost power at the Roanoke Rapids site and consequently in the kind of instrumentality, public or private, to which power development at this site is committed. Respondents say, however, that decisions of policy in the construction of power projects have been entrusted to the Commission, or at most also to the Secretary of the Army, under whom the Corps of Engineers performs its statutory functions of making surveys and constructing public works, and that the interests of petitioners arise only after a public project has been constructed and the Secretary of the Army has determined that there is excess power to be distributed and sold. We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases. Petitioners' main contention, that Congress has, by a series of enactments to be construed as part of an evolving assumption by the Federal Government of comprehensive authority over navigable waters, reserved the Roanoke Rapids site for public development and so has placed it beyond the licensing power of the Federal Power Commission, requires us to consider with some particularity [345 U.S. 153, 157] the steps by which plans for the Roanoke Rapids project have unfolded. Petitioners' contention reduces itself to the claim that the authority of the agency to which Congress has delegated the responsibility for safeguarding the public interest in the private development of power resources has been revoked pro tanto by congressional action as to this particular site. In 1927, the Army Engineers were authorized to make a specific survey of the Roanoke River by 1 of the Rivers and Harbors Act, 44 Stat. 1010, 1015, which "adopted and authorized" enumerated "works of improvement" including "surveys in accordance with" H. R. Doc. No. 308, 69th Cong., 1st Sess. (1926). That document, a milestone in the development of integrated federal planning for the use of the Nation's water resources, had recommended surveys of a large number of streams throughout the country, including the Roanoke River, "either for the preparation of plans for improvement to be undertaken by the Federal Government alone or in connection with private enterprise, or to secure adequate data to insure that waterway developments by private enterprise would fit into a general plan for the full utilization of the water resources of a stream." H. R. Doc. No. 308, 69th Cong., 1st Sess. 4. The detailed survey of the Roanoke River was transmitted to Congress in 1934; in it the Chief of Engineers stated that a comprehensive plan for navigation and power, flood control or irrigation "is not economically justifiable at the present time," H. R. Doc. No. 65, 74th Cong., 1st Sess. 2 (1935), and concurred in the judgment of the investigating engineer that "[t]here is no justification for any Federal expenditures for either flood control or power." Id., at 53; cf. id., at 14-15. In 1936, Congress enacted the Flood Control Act of 1936, 49 Stat. 1570, defining the public interest in flood control as follows: "It is hereby recognized that destructive [345 U.S. 153, 158] floods upon the rivers of the United States . . . constitute a menace to national welfare; that it is the sense of Congress that flood control on navigable waters or their tributaries is a proper activity of the Federal Government . . .; that the Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected." 49 Stat. 1570, 33 U.S.C. 701a. In the same Act, the Secretary of War was authorized to continue surveys at a number of localities, including "Reservoirs in Roanoke and Tar Rivers, North Carolina." 1 7, Act of 1936, 49 Stat. 1596. In 6 of the Act, Congress provided that "the Government shall not be deemed to have entered upon any project for the improvement of any waterway mentioned in this Act until the project for the proposed work shall have been adopted by law." 49 Stat. 1592. Following a destructive flood on the Roanoke River in 1940, the House Committee on Flood Control adopted a resolution requesting reappraisal of the previous reports on the Roanoke River to determine "whether any improvements in the interests of flood control and allied purposes are advisable at this time." See H. R. Doc. No. 650, 78th Cong., 2d Sess. 12 (1944). A similar resolution was adopted later by the House Committee on Rivers and Harbors, see ibid., and as a result, the Corps of Engineers submitted its recommendations in a report which became H. R. Doc. No. 650, 78th Cong., 2d Sess. [345 U.S. 153, 159] (1944). This report recommended the comprehensive Roanoke Basin plan here in issue. The report proposed a system of eleven dams and reservoirs, eight of them on the Roanoke River, and recommended authorization of two of those projects, designated Buggs Island and Philpott, "as the initial step." Id., at 2. Petitioners rely most strongly on two features of this report for their claim that Congress has, by approving the plan outlined in the report, withdrawn all sites in the plan from the licensing jurisdiction of the Federal Power Commission. As the report moved up through the hierarchy of the Corps of Engineers, comments upon the plan were made by the different responsible officers. The detailed report of the investigating engineer estimated costs, including interest, on bases obviously contemplating federal financing. These figures were accepted in the comments of each forwarding officer. Further, the Chief of Engineers, in submitting the report, stated, "To safeguard the interests of navigation and flood control, the dams and power facilities should be constructed, operated, and maintained under the direction of the Secretary of War and the supervision of the Chief of Engineers." Ibid. Neither the reports nor the comments of subordinates had contained any such suggestion or any engineering or other reasons why such a recommendation might be made, and the Chief of Engineers gave no reasons for his suggestion. Further, it is not clear from the context that the statement referred to all the projects and not simply to the two dams to be authorized, that is, the ones with flood-control features, or even that the words "under the direction . . . and the supervision" precluded construction by a private applicant; indeed, the order here granting the license specifically requires the licensee to "operate its project in such a manner as the Chief of Engineers, Corps of Engineers, Department of the Army, or his authorized [345 U.S. 153, 160] representative, may prescribe." We do not think these disconnected statements would justify us in saying that the report as it went to Congress plainly proposed that the Government construct all the projects in the plan. There are contrary indications in the report itself; particularly pertinent in the light of congressional practice is the strong emphasis put on the flood-control aspects of the two projects recommended for authorization. In any event, we do not have a recommendation for public construction that is clearly an integral part of the plan, and the decisive question is not what this or that isolated statement in the report or the comments thereon imply but how Congress may fairly be said to have received and read the report in the light of the legislative practice in relation to such public works. It deserves mention that the Roanoke Rapids site, although comprehended in the plan and found to be the most desirable power site of all eleven units, was to be developed simply for the production of power. The District Engineer pointed out that the two projects recommended for early authorization would provide practically all the flood-control benefits to be derived from the plan; installations at the two sites, Buggs Island and Philpott, would "eliminate over 90 percent of the flood losses to the two main flood-damage areas in the Roanoke River Basin." Id., at 88. At those two sites were to be built multiple-purpose reservoirs for flood control, water power, and low-water regulation, while at the other nine sites, with one minor exception, there were simply to be power projects. As is customary, the Federal Power Commission was asked to comment on the proposal; by letter to the Chief of Engineers dated May 3, 1944, the Commission suggested some technical changes but concurred substantially in the recommendations of the Engineers, "that the comprehensive development of the Roanoke River Basin, [345 U.S. 153, 161] in general accordance with the plans prepared therefor by the district engineer consisting of 11 dam and reservoir projects with power, is desirable and that the Buggs Island and Philpott projects would constitute a desirable initial step in the development of the Roanoke River Basin." Id., at 4. The report was presented to Congress while the bill that became the Flood Control Act of 1944 was under consideration; although the House had already closed its hearings, the Senate Report proposed amending the bill to include provision for the Roanoke Basin, recommending "approval of the comprehensive plan and authorization for construction of the Buggs Island and Philpott Reservoirs in accordance with the recommendations of the Chief of Engineers." S. Rep. No. 1030, 78th Cong., 2d Sess. 8. The proposal was accepted, and 10 of the Act contains a corresponding provision. It provides that "the following works of improvement . . . are hereby adopted and authorized." Included in an omnibus listing of such "works of improvement" is the following: "The general plan for the comprehensive development" of the Roanoke Basin recommended in H. R. Doc. No. 650 "is approved" and construction of Buggs Island and Philpott is "hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000." 2 [345 U.S. 153, 162] It is this statutory language that petitioners say withdrew the Roanoke Rapids site from the licensing jurisdiction of the Commission. They ask us to read the word "approved" as a reservation of the site for public construction and, by necessary implication, a withdrawal of the site from the Commission's licensing authority. A flat "approval" of a plan clearly recommending public construction as an indispensable constituent of the plan might indeed have that effect, but, as indicated above, we do not find that the plan made any such recommendation. A separate argument of petitioners is based in part on the language of a proviso commonly inserted in authorizations for flood-control surveys, 3 that the Government shall not be deemed to have entered upon a project until the project is "adopted by law." From this language petitioners infer that the Government's entry upon a project so as to preclude private construction occurs when Congress adopts a project, and they ask us to say that such adoption occurred here when Congress "approved" [345 U.S. 153, 163] the plan comprehending the Roanoke Rapids site. We do not think the word "approval" carries the implication of "adoption" or "authorization" by its own force. Read together with other legislative action concerning water resources and with the history of federal activity in that regard, congressional "approval" without more 4 cannot be taken, we think, to indicate in this case more than a legislative finding that the proposed projects, no matter by whom they may be built, are desirable and consistent with congressional standards for the ordered development of the Nation's water resources. Such a finding has meaning in conveying the congressional purpose and expressing a congressional attitude. Concretely it means that Congress has adopted a basic policy for the systematic development of a river basin. Decision is made on such questions as the locations of projects, the purposes they are to serve, their approximate size and the desirable order of construction; because of the necessary interrelationship of many technical engineering and economic features of the several dams in a single river basin, early choice among possible alternatives is imperative. The policy chosen by Congress when it approves a plan is, in the first place, directed to Congress [345 U.S. 153, 164] itself in its appropriating function. 5 Approval also tells the Federal Power Commission - the executant of congressional policy - how to exercise its authority in relation to the authorization of sites in the Roanoke Basin. The finding had utility in this case in the guidance it gave the Commission in determining whether a private applicant would adequately develop all the benefits that should be derived from the proposed site. In so interpreting the language Congress has used, we gain some light from the action Congress has taken to set projects in motion following enactment of statutes "approving" a comprehensive plan and "authorizing" certain projects set out in the plan. For the Roanoke River Basin itself, although Buggs Island and Philpott were specifically "authorized" in the Flood Control Act of 1944, separate steps were taken by Congress to complete the authorization; "planning money" was appropriated, [345 U.S. 153, 165] a "Definite Project Report" was received for Buggs Island, and then funds for construction of Buggs Island were appropriated. Equally illuminating is the procedure by which Congress recently set in motion plans to build a project "approved" exactly as was the Roanoke Rapids project. At approximately the same time as the engineering reports on the Roanoke River were submitted, a comparable report was submitted concerning the Savannah River, Georgia, and recommending a comprehensive plan much like the Roanoke River Basin plan. Like Buggs Island and Philpott in the Roanoke plan, Clark Hill in the Savannah plan was recommended for immediate authorization, "as the initial step." See H. R. Doc. No. 657, 78th Cong., 2d Sess. 6. As the demand for power increased, other projects included in the plan were to follow, the first to be the Hartwell site. The Senate Report accepted this recommendation, S. Rep. No. 1030, 78th Cong., 2d Sess. 9-10, just as it had the Roanoke Basin recommendation, and called for "approval of the comprehensive plan and authorization for construction of the Clark Hill project." Id., at 10. Section 10 of the Flood Control Act of 1944 contains a corresponding provision. 58 Stat. 894. Thus, the background as well as the precise terms of the provisions relating to projects in the Savannah River plan are closely parallel to those relating to the Roanoke projects. Recently, when further construction on the Savannah River was proposed and authorization of Hartwell, the site next in line, was recommended, neither Congress nor the Engineers treated the earlier "approval" of the comprehensive plan as a final step making unnecessary other than automatic appropriations for Hartwell. Rather, hearings were held, see Hearings before House Committee on Public Works on H. R. 5472 (Title II), 81st Cong., 1st Sess. 37-85 (May 16, 1949), and a separate authorization for construction was [345 U.S. 153, 166] included in the Rivers and Harbors Act of 1950, 64 Stat. 171. 6 Respondents further point out that at the same time hearings were held on the Hartwell project, there were also hearings on further construction in the Roanoke Basin, and the Corps of Engineers proposed the authorization of Smith Mountain, a project with minor flood-control benefits but not next in line under the plan as approved in the Flood Control Act of 1944. That plan had put the Roanoke Rapids site here involved and the Gaston site ahead of Smith Mountain. The reason given by the Engineers for changing the order of construction was that private applications, including the application here, had been made or contemplated for the Roanoke Rapids and Gaston sites. While we do not attach weight to subsequent statements by the Engineers that the Flood Control Act of 1944 did not preclude private construction of some projects in the plan, it is pertinent to note that a Committee of Congress responsible for water resources legislation was informed that an application was pending for private construction. Whether or not the Committee agreed that the Flood Control Act of 1944 allowed private construction of projects comprehended in plans there approved, in fact no action was taken by it to prevent the Commission from proceeding to hear the [345 U.S. 153, 167] VEPCO application, although the Committee learned that the application was pending over a year and a half before the order was handed down by the Commission. Whatever light these subsequent proceedings in Congress afford, both as to the Roanoke Basin and as to the comparable Hartwell site in the Savannah River plan, we find no solid ground for concluding that Congress has taken over the entire river basin for public development with such definiteness and finality so as to warrant us in holding that Congress has withdrawn as to this whole river basin its general grant of continuing authority to the Federal Power Commission to act as the responsible agent in exercising the licensing power of Congress. Extensive review of the need for integration of federal activities affecting waterways, see, e. g., Report of Secretary of War Stimson, H. R. Doc. No. 929, 62d Cong., 3d Sess. 32-35 (1912), and of the breadth of authority granted to the Commission by Congress in response to that need is hardly necessary to establish the role of the Commission in hydroelectric power development. See, e. g., First Iowa Coop. v. Power Comm'n, 328 U.S. 152, 180 , 181, and cases cited. From the time that the importance of power sites was brought to public and congressional consciousness during the administration of President Theodore Roosevelt, the significant development has been the devising of a general power policy instead of ad hoc action by Congress, with all the difficulties and dangers of local pressures and logrolling to which such action gave rise. See the Veto Messages of Presidents Roosevelt and Taft, e. g., 36 Cong. Rec. 3071 (Muscle Shoals, Ala., 1903); 42 Cong. Rec. 4698 (Rainy River, 1908); H. R. Doc. No. 1350, 60th Cong., 2d Sess. (James River, 1909); H. R. Doc. No. 899, 62d Cong., 2d Sess. (White River, 1912); S. Doc. No. 949, 62d Cong., 2d Sess. (Coosa River, 1912). It soon became clear that indispensable to a wise national policy [345 U.S. 153, 168] was the creation of a commission with functions and powers comparable to those of the Interstate Commerce Commission in the field of transportation. It took the usual time for such a commission to come into being, and the process was step-by-step. Originally Congress entrusted its policy to a commission composed of three Cabinet officers. 41 Stat. 1063. An agency so burdened with other duties was naturally found inadequate as the instrument of these important water-power policies. And so, in 1930, the Commission was reorganized as an expert body of five full-time commissioners. 46 Stat. 797, 16 U.S.C. 792. These enactments expressed general policies and granted broad administrative and investigative power, making the Commission the permanent disinterested expert agency of Congress to carry out these policies. Cf. 41 Stat. 1065, as amended, 49 Stat. 839, 16 U.S.C. 797; 3 Report of the President's Water Resources Policy Comm'n 501 (1950). A principal responsibility of the Commission has always been that of determining whether private construction is consistent with the public interest. See, e. g., S. Rep. No. 180, 66th Cong., 1st Sess. 3. Express provision is made to charge the Commission with the task of deciding whether construction ought to be undertaken by the United States itself. 41 Stat 1067, as amended, 49 Stat. 842, 16 U.S.C. 800 (b). Further, even if private construction is to be allowed, approval of private applications requires a determination that the proposed project is "best adapted to a comprehensive plan" for water resources development. 41 Stat. 1068, as amended, 49 Stat. 842, 16 U.S.C. 803 (a). Thus, congressional approval of a comprehensive plan can be read, as we think it should in this case, simply as saying that a plan such as that here, recommended by the Corps of Engineers for the fullest realization of the potential benefits in the river basin, should be accepted by the [345 U.S. 153, 169] Commission as the comprehensive plan to be used in the application of these statutory provisions. That "approval" as such does not reserve all projects in the plan for public construction is perhaps further indicated by the fact that when Congress has wished to reserve particular sites for public construction, it has chosen to say so. See 41 Stat. 1353, 45 Stat. 1012, 45 Stat. 1062. Of course it is not for us to intimate a preference between private or public construction at this site. Nor are we even asked to review the propriety of the Commission's determination in this case that private construction is "in harmony with" the comprehensive plan for the Roanoke Basin. Re Virginia Electric & Power Co., 87 P. U. R. (N. S.) 469, 483. We are simply asked to decide whether Congress has withdrawn the power to decide this question from the Commission. To conclude that Congress has done so by approving a general plan for development that may be, and in this case was, a plan for long-term development, would be to contract, by a tenuous chain of inferences, the broad standing powers of the Commission. Particularly relevant in this regard is the estimate that public development at this site would not in the normal course be undertaken for many years. See Examiner's Decision of March 17, 1950, R., I, 109. Congress was of course aware that, by granting a license to private enterprise, the Federal Power Commission would not commit the site permanently to private development and preclude all further congressional action. The Commission would, as it did here, simply express its judgment that, at the time, private development of the site was consistent with the general conception of the way in which the Roanoke River Basin should be developed. For, at any time short of the fifty years in which a site automatically becomes available to the Government without compensation, the Government may determine that the public interest makes it more desirable that the [345 U.S. 153, 170] project be operated publicly and has the right then, by appropriate steps, to take over the project. 41 Stat. 1071, as amended, 49 Stat. 844, 16 U.S.C. 807. The purpose of Congress would have to be much more clearly manifested to justify us in inferring that Congress revoked the Commission's power to decide whether a private license consonant with the general scheme of development for this river basin ought now to be granted in the public interest. Our conclusion is in accord with the implications of the manifest reluctance of Congress to enter upon power projects having no flood-control or navigational benefits. It cannot be said that as unclear a term as "approval" was to have settled, for this entire river basin, a major controversy that has arisen again and again in connection with legislation authorizing public construction of hydroelectric projects. The declaration of policy in the Flood Control Act of 1936, supra, pp. 157-158, puts strong emphasis on the flood-control aspects of plans for sites that would also produce power; no change in this policy can be read into 10 of the Flood Control Act of 1944. Cf., e. g., 90 Cong. Rec. 4126; id., at 4127. And the sponsor in the House of the Flood Control Act of 1944 stated in answer to a question: ". . . we have repeatedly stated during the debate that no project, reservoir, or dam, or other improvement is embraced in this bill unless it is primarily for flood control. If power can be developed as an incident, or if reclamation can be provided, they are cared for in the bill." 90 Cong. Rec. 4199; cf. id., at 4202. In the light of this history and these specific declarations, it strains belief that "approval" of the comprehensive plan for the Roanoke Basin reserves all projects named in the plan for federal construction when the two projects that provided the chief flood-control features of the plan were the only ones specifically authorized. [345 U.S. 153, 171] Subordinate arguments are made, bearing partly on the power of the Commission to issue any license for private development and partly on the Commission's exercise of its power in granting this license. The arguments involve technical engineering and economic details which it would serve no useful purpose to canvass here. Once recognizing, as we do, that the Commission was not deprived of its power to entertain this application for a license, we cannot say, within the limited scope of review open to us, that the Commission's findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason. At the heart of these arguments is the fact that the Roanoke Rapids site is, under present estimates, the most desirable site for power in the Roanoke Basin. For that reason, as petitioners argue, removal of the Roanoke Rapids site from a government-operated system would result in loss to the Federal Government of the potential benefits of that site and a decrease, but only by the amount of the Roanoke Rapids profits, in the potential profits of the system as a whole. But it has never been suggested that such is the criterion under which the Commission is to determine whether a project ought to be undertaken by the United States, let alone that such considerations could demonstrate that Congress withdrew the Roanoke Rapids site from the licensing jurisdiction of the Commission. If it could be shown that the plan could not be executed successfully without the Roanoke Rapids site, it would be arguable that congressional approval of the plan presupposed that all units of the plan be centrally administered. The findings are to the contrary. The Commission has found that the proposed private [345 U.S. 153, 172] project is consistent with the plan contained in the Flood Control Act of 1944, Re Virginia Electric & Power Co., supra, at 483; that there is no reason to believe that the "interest of the public at large will not be fully protected and promoted" by the issuance of this license, id., at 472; and that there was no showing that the Roanoke Rapids site would "at any time" be developed by the United States. Id., at 483. Further, there is express recognition of the possibility that the site may be benefited by government projects in operation and consequently of the fact that VEPCO may be required to compensate the Government for any such "headwater benefits" conferred. 7 Id., at 477-478. Finally, we do not find merit in the contention that the Commission was required by 7 (b) of the Federal Power Act to recommend public construction of the project. 8 As the report of the Corps of Engineers does not [345 U.S. 153, 173] clearly recommend that all projects be constructed by the United States, the Commission's concurrence in that report cannot provide a basis for invoking the provisions of 7 (b). Section 7 (b) is a direction to the Commission not to approve a private application for a project "affecting" any development of water resources which, in the judgment of the Commission, should be undertaken by the United States itself. Petitioners in effect ask us to tell the Commission what it thought - to say to the Commission that it was its judgment that Roanoke Rapids, as well as all the other seven projects in the Roanoke plan not yet under consideration, should be built by the Government. It is not clear that the Commission's concurrence in the general plan would have been much more than simple approval of the location of the dams, the purposes they would serve, and the engineering characteristics of the projects, even if the report had clearly recommended public construction. Primary responsibility for the enforcement of the provisions of 7 (b) must remain with the Commission; we cannot infer a judgment of the Commission that it never expressed and now specifically disavows. For these reasons, we agree with the Court of Appeals that the Commission's order must stand. In the bits and pieces of legislative history which we have set out, we find no justification for inferring that Congress withdrew the Commission's authority regarding the Roanoke River Basin from the general authority given the Commission to grant licenses for private construction of hydroelectric projects with appropriate safeguards of the public interest. Whatever the merits of the controversy [345 U.S. 153, 174] as to which agency - the Government or a private party - should construct this project, that question is not within our province. Affirmed. Footnotes [Footnote 1 Section 6 of the Flood Control Act of 1938 authorized the Secretary of War to make surveys "for flood control" of the Smith River, a tributary of the Roanoke on which two of the eleven projects in the comprehensive Roanoke Basin plan are located. 52 Stat. 1223. [Footnote 2 The full text of the provisions, so far as they are relevant, is as follows: "SEC. 10. That the following works of improvement for the benefit of navigation and the control of destructive flood waters and other purposes are hereby adopted and authorized in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance [345 U.S. 153, 162] with the plans in the respective reports hereinafter designated and subject to the conditions set forth therein: [Provisos omitted]. . . . . . "ROANOKE RIVER BASIN "The general plan for the comprehensive development of the Roanoke River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 650, Seventy-eighth Congress, second session, is approved and the construction of the Buggs Island Reservoir on the Roanoke River in Virginia and North Carolina, and the Philpott Reservoir on the Smith River in Virginia, are hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000." 58 Stat. 891-892, 894. [Footnote 3 See, e. g., 6 of the Flood Control Act of 1936, quoted p. 158, supra. [Footnote 4 There is little force in the argument that the words "adopted and authorized" in 10, see note 2, supra, apply to the Roanoke Rapids site. Not only is the specific provision as to the Roanoke Basin to control over the general, but that which is adopted and authorized is not "the following plans" but "the following works of improvement," which patently refers to such projects as Buggs Island and Philpott, rather than to all sites named in a comprehensive plan. This answers that part of petitioners' argument which relies on the language of 10 speaking of prosecution of the projects "under the direction of the Secretary of War" when "budgetary requirements" permit. As a matter of language, apart from all other considerations, the "works of improvement" to which such language refers is better read as the projects authorized rather than as all projects named in plans that were approved. [Footnote 5 The Rules of both the Senate and the House in 1944, as now, called for previous choice of policy through authorization by law before any item of appropriations might be included in a general appropriations bill. Rule XVI, Senate Manual, S. Doc. No. 239, 77th Cong., 2d Sess. 20; Rule XXI, Rules of the House of Representatives, H. R. Doc. No. 812, 77th Cong., 2d Sess. 384. The importance of this distinction in the context of authorization of power projects is brought out in the following colloquy between a representative of the Corps of Engineers and Chairman Whittington of the House Committee on Public Works: "The CHAIRMAN. . . . Is not the word `approved' an authorization for the plan but without appropriation, or without an authorization for the appropriation? "What is the difference between approving and authorizing a plan? "Colonel GEE. We have never construed the approval of the plan to carry with it the authorization to construct the elements of that plan. "The CHAIRMAN. Nor do we." Hearings before the House Committee on Public Works on H. R. 5472 (Title II), 81st Cong., 1st Sess. 42. [Footnote 6 The general enacting provision, 204, 64 Stat. 170, is substantially the same as 10 of the Flood Control Act of 1944, supra, note 2. The specific provision as to the Savannah River is as follows: "SAVANNAH RIVER BASIN "There is hereby authorized to be appropriated the sum of $50,000,000 for the construction of the Hartwell project in the general plan for the comprehensive development of the Savannah River Basin, approved in the Act of December 22, 1944, in addition to the authorization for project construction in the Act of December 22, 1944." 64 Stat. 171. [Footnote 7 Thus, whatever benefits may be conferred by such government projects as Buggs Island on the Roanoke Rapids site will not be lost to the United States. The Commission is required by 10 (f) of the Federal Power Act, 41 Stat. 1070, as amended, 49 Stat. 843, 16 U.S.C. 803 (f), to determine the charges to be paid by the licensee. The parties are in dispute over the value of the benefits, but, as the Commission said, "[t]he amount of the payments for headwater benefits due under the Federal Power Act cannot be estimated with any degree of accuracy until after the project has been placed in operation for such time as necessary to demonstrate what actual benefits are being conferred." Re Virginia Electric & Power Co., supra, at 478. We do not consider the correct basis for ascertaining the amount due to the United States, because, as the Commission's statement indicates, the question is not before us in this case. [Footnote 8 Section 7 (b) of the Federal Power Act provides: "Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall [345 U.S. 153, 173] cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development." MR. JUSTICE CLARK, concurring. I agree with the majority that the sole question before us is whether Congress has withdrawn the Roanoke Rapids site from the licensing jurisdiction of the Commission and that the answer is in the negative. But in reaching this result weight should be given the administrative interpretation of the 1944 Flood Control Act both by the Army Corps of Engineers and the Federal Power Commission. Taken together with the fact that Congress was fully advised of the Commission's action and the Corps' agreement with it as early as May 1949 and failed to express any disagreement during the period of more than two years when the application was under consideration, this administrative interpretation seems to me decisive. We are cited to three cases in which the Commission, with the full approval of the Corps of Engineers, has licensed private developments despite prior congressional action adopting and authorizing public construction as part of river basin improvement plans. 1 While the plans included in those projects may not have [345 U.S. 153, 175] been as comprehensive as The Roanoke River Basin Plan, each had been approved by Acts of Congress using language similar to that in 10 of the Flood Control Act of 1944. With this as background, a colloquy between Colonel Gee of the Corps of Engineers and the House Flood Control Committee on May 16, 1949, gains significance. Colonel Gee mentioned VEPCO's then pending application and stated that the Corps had not regarded the 1944 approval as precluding such private licensing. 2 I would affirm on the basis of this administrative interpretation by two agencies charged by Congress with direct flood control and power licensing responsibilities. [Footnote 1 License issued to County of Placer, California, August 8, 1951. Project No. 2021, for power plant at debris storage dam on North Fork, American River, constructed pursuant to authorization in River and Harbor Act of August 30, 1935 (49 Stat. 1028, 1038), as recommended in House Rivers and Harbors Committee Document No. 50, 74th Cong., 1st Sess. License issued to St. Anthony's Falls Water Power Co., August 31, 1951, Project No. 2056, to use water from United States navigation dam at St. Anthony's Falls, Minnesota, authorized in the River and Harbor Act of 1937 (50 Stat. 844, 848), as recommended in House Rivers and Harbors Committee [345 U.S. 153, 175] Document No. 34, 75th Cong., 1st Sess. Two licenses issued in 1934 and 1936 to Kanawha Valley Power Co., Projects Nos. 1175 and 1290, for three power plants at navigation dams on Kanawha River, West Virginia, authorized in River and Harbor Act of 1930 (46 Stat. 918, 928) as recommended in H. R. Doc. No. 190, 70th Cong., 1st Sess. [Footnote 2 "MR. ANGELL. Is the Federal Government at the present time planning to develop any of those dams on the lower part of the river which are devoted exclusively to power production? "COLONEL GEE. No, sir. They have the same status in this basin plan as the eight remaining projects. They are part of the approved plan. Their being in that plan certainly is no bar to a private utility company coming in and seeking to develop one of these projects. "MR. ANGELL. And that is what is being done now. "COLONEL GEE. That is being done now at Roanoke Rapids, sir." Hearings before the House Committee on Public Works on H. R. 5472 (Tit. II), 81st Cong., 1st Sess. 144. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting. Roanoke Rapids is a power site belonging to the Federal Government and now surrendered to private power interests under circumstances that demand a dissent. Roanoke Rapids is a part of the public domain. [345 U.S. 153, 176] (1) The Roanoke is a navigable stream over which Congress has complete control for purposes of navigation, flood control, watershed development, and the generation of electric power. United States v. Appalachian Power Co., 311 U.S. 377, 426 ; Oklahoma v. Atkinson Co., 313 U.S. 508, 525 . (2) The water power inherent in the flow of a navigable stream belongs to the Federal Government. United States v. Appalachian Power Co., supra, at 424. (3) The dam sites on this navigable stream are public property. The technical title to the bed of the stream may be in private hands. But those private interests have no compensable interest as against the control of the Federal Government. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596 -597; United States v. Commodore Park, 324 U.S. 386, 390 . This is familiar law that emphasizes the public nature of the project which the Court now allows to be used for the aggrandizement of private power interests. This project is as much in the public domain as any of our national forests or national parks. It deals with assets belonging to all the people. These facts must be kept in mind in reading 10 of the Flood Control Act of 1944, 58 Stat. 887, 891. 1 From that [345 U.S. 153, 177] starting point I think it only fair to conclude (1) that if Congress undertook to remove this project from the public domain, it would make its purpose plain; and (2) that when Congress approved the project it meant to reserve it for the public good, not to make it available to private interests to exploit for their own profit. Section 10 "adopted and authorized" the development of the Roanoke River Basin "in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program." The words "public works" certainly connote public not private construction. Section 10 further provided that the projects which are "adopted and authorized" are "to be prosecuted under [345 U.S. 153, 178] the direction of the Secretary of War and supervision of the Chief of Engineers." That language also suggests public projects, not private undertakings. Section 10 also provided that these projects "shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements." Plainly Congress was concerned with the "budgetary requirements" of the Federal Government, not with the budgetary requirements of private power companies. Section 10, after approving the general plan for the comprehensive development of the Roanoke River Basin, authorizes the construction of the Buggs Island Reservoir on the Roanoke River and the Philpott Reservoir on the Smith River. This Act, passed before the end of World War II, was designed to serve a post-war need. It was drawn so as to provide a backlog of public works projects which would take up the slack of unemployment expected at the war's end. Congressman Whittington, in charge of the bill in the House, made the following significant statement concerning this objective, 90 Cong. Rec. 4122: "We recall the depression following World War No. 1. We are apprehensive of another debacle following the present war. It is difficult to arm. It is more difficult to disarm. Post-war unemployment will be a major national problem. While we are defending our freedom and our way of life, we must not fail to take stock of the problem of unemployment which we must face when the war is over. "We must profit by the experience of 1920. We must profit by the experience of 1930. A reservoir of projects must be adopted. Backlogs should be provided and they should be real backlogs. Many wasteful and extravagant activities to provide employment were adopted in 1933. Haste and speed [345 U.S. 153, 179] were imperative. There was hunger in the land. Unemployment was widespread. There must be no repetition of waste and extravagance. There are Federal activities and there are public works that will promote the general welfare." This statement highlights the meaning of "public works" as used in 10; it discloses an important reason for lodging the program with public officials; it emphasizes the occasion for referring to the budgetary requirements of the Federal Government and the importance of linking flood control with post-war unemployment problems. The argument that when Congress by 10 of the Act "adopted and authorized" the "following works of improvement," it "adopted and authorized" only the Buggs Island and Philpott reservoirs involves an invented distinction between "works of improvement" and "general plans for development" - a distinction without any rational basis. The "works of improvement" which are "adopted and authorized" by 10 are 38 in number. Some of these are described in the sub-headings as "projects" that are "authorized," some as "plans of improvement" that are "approved" and "authorized," some as "general plans" for the comprehensive development of river basins that are "approved" together with the "construction" of specific projects that are "authorized." This makes plain that "works of improvement" which are "adopted and authorized" by 10 include a variety of undertakings, not merely works of construction which are first steps in general comprehensive plans being adopted and authorized. From this it seems almost too plain for argument that Congress, in approving the plan for the development of the Roanoke River Basin, was setting it aside for federal development, the several public works projects under the plan to be authorized as, if, and when conditions warranted [345 U.S. 153, 180] them and budgetary requirements permitted. 2 In this setting "approval" by Congress meant a dedication of the projects for public development. 3 If that view is not taken, then why did Congress call these projects "public works"? If these projects were destined for development by private power interests, why did Congress place their construction under the Secretary of War and the Chief of Engineers? If Congress left this part of the public domain for exploitation by private power groups, why did it gear them to the employment requirements of the post-war period and the budget requirements of the Federal Government? Approval of the projects by Congress under these various terms and conditions can only mean one thing - that Congress gave its sanction to their development as public projects. To be sure, Congress in the Federal Power Act left part of the public domain to be exploited by private interests, if the Federal Power Commission so orders. But the action relative to the Roanoke River Basin was action by Congress without reference to the Federal Power Commission. [345 U.S. 153, 181] Its action was not made dependent on the approval of the Federal Power Commission. The Act in no way links the Roanoke River Basin program to the Commission. To the contrary, the Congress undertook to authorize specific projects under the plan, plainly suggesting that these were public projects whose authorization was in no way dependent on Commission action. The true character of this raid on the public domain is seen when Roanoke Rapids is viewed in relation to the other projects in the comprehensive plan. Roanoke Rapids is the farthest downstream of the 11 units in the plan. Upstream from Roanoke Rapids is Buggs Island (now under construction with federal funds) with an ultimate installed capacity of 204,000 kw. and a controlled reservoir capacity of over 2,500,000 acre-feet. Roanoke Rapids is indeed the powerhouse of the Buggs Island Reservoir. That reservoir increases the dependable capacity of Roanoke Rapids from 4 hours during the peak month of December to 288 hours in the same peak month. Buggs Island contributes 70,000,000 kw.-hr. to the Roanoke Rapids project. This is on-peak energy, firm energy made dependable by the storage in the Buggs Island Reservoir. There is evidence that this energy will have a value in excess of $700,000 a year. 4 That $700,000 of value is created by the taxpayers of this country. Though it derives from the investment of federal funds, it will now be appropriated by private power groups for their own benefit. The master plan now becomes clear: the Federal Government will put up the auxiliary units - the unprofitable ones; and the private power interests will take the plums - the choice ones. [345 U.S. 153, 182] There is not a word in the Act which allows such an unconscionable appropriation of the public domain by private interests. To infer that Congress sanctioned such a scheme is to assume it was utterly reckless with the public domain. I would assume that Congress was a faithful trustee, that what it approved as "public works" projects it dedicated to the good of all the people. [Footnote 1 Section 10 of the Flood Control Act of 1944 reads in pertinent part as follows: "That the following works of improvement for the benefit of navigation and the control of destructive flood waters and other purposes are hereby adopted and authorized in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance with the plans in the respective reports hereinafter designated and subject to the conditions set forth therein: Provided, That the necessary plans, specifications, and preliminary work may be prosecuted on any project authorized in this Act to be constructed by the War Department during the war, with funds from appropriations [345 U.S. 153, 177] heretofore or hereafter made for flood control, so as to be ready for rapid inauguration of a post-war program of construction: Provided further, That when the existing critical situation with respect to materials, equipment, and manpower no longer exists, and in any event not later than immediately following the cessation of hostilities in the present war, the projects herein shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements: And provided further, That penstocks and other similar facilities adapted to possible future use in the development of hydroelectric power shall be installed in any dam authorized in this Act for construction by the War Department when approved by the Secretary of War on the recommendation of the Chief of Engineers and the Federal Power Commission. . . . . . "ROANOKE RIVER BASIN "The general plan for the comprehensive development of the Roanoke River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 650, Seventy-eighth Congress, second session, is approved and the construction of the Buggs Island Reservoir on the Roanoke River in Virginia and North Carolina, and the Philpott Reservoir on the Smith River in Virginia, are hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000." [Footnote 2 Congressman Curtis, one of the House conferees, explained the same language in 9 of the Act whereby Congress "approved" comprehensive plans for the development of the Missouri River Basin (90 Cong. Rec. 9284): "It means that Congress has approved the general plans of the engineers, and it means that these plans are authorized by law and are, therefore, eligible for future appropriations. Without such an authorization, no appropriation can be had." [Footnote 3 The interpretations placed on the Act by the Army Corps of Engineers are entitled to no weight. The Corps of Engineers is not an administrative agency charged with the responsibility of deciding issues of policy. Its powers are limited to the making of investigations and the preparation and submission of recommendations and reports based on engineering considerations. See, for example, 1 (a) of the Act of December 22, 1944, 58 Stat. 887, adopting and authorizing the Roanoke River Basin plan; 33 U.S.C. 701-1 (a). Congress alone makes policy decisions affecting the public domain. [Footnote 4 Even the evidence submitted by the private power company applicant belies the Commission's figure of $250,000 (see 87 P. U. R. (N. S.) 469, 477-478) and places the value in excess of $700,000. The Commission's figure of $250,000 is indubitably a plain error. [345 U.S. 153, 183]

conservative

public_entity

economic_activity

1991-057-01

United States Supreme Court FREEMAN v. PITTS(1992) No. 89-1290 Argued: October 7, 1991Decided: March 31, 1992 In a class action filed by respondents, black schoolchildren and their parents, the District Court, in 1969, entered a consent order approving a plan to dismantle the de jure segregation that had existed in the DeKalb County, Georgia, School System (DCSS). The court retained jurisdiction to oversee implementation of the plan. In 1986, petitioner DCSS officials filed a motion for final dismissal of the litigation, seeking a declaration that DCSS had achieved unitary status. Among other things, the court found that DCSS "has traveled the . . . road to unitary status almost to its end," noted that it had "continually been impressed by [DCSS'] successes . . . and its dedication to providing a quality education for all," and ruled that DCSS is a unitary system with regard to four of the six factors identified in Green v. School Bd. of New Kent County, 391 U.S. 430 : student assignments, transportation, physical facilities, and extracurricular activities. In particular, the court found with respect to student assignments that DCSS had briefly achieved unitary status under the court-ordered plan, that subsequent and continuing racial imbalance in this category was a product of independent demographic changes that were unrelated to petitioners' actions and were not a vestige of the prior de jure system, and that actions taken by DCSS had achieved maximum practical desegregation from 1969 to 1986. Although ruling that it would order no further relief in the foregoing areas, the court refused to dismiss the case because it found that DCSS was not unitary with respect to the remaining Green factors: faculty assignments and resource allocation, the latter of which the court considered in connection with a non-Green factor, the quality of education being offered to the white and black student populations. The court ordered DCSS to take measures to address the remaining problems. The Court of Appeals reversed, holding, inter alia, that a district court should retain full remedial authority over a school system until it achieves unitary status in all Green categories at the same time for several years; that, because, under this test, DCSS had never achieved unitary status, it could not shirk its constitutional duties by pointing to demographic shifts occurring prior to unitary status; and that DCSS would have to take further actions to correct the racial imbalance, even though such actions might be "administratively awkward, [503 U.S. 467, 468] inconvenient, and even bizarre in some situations," Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 28 . Held: 1. In the course of supervising a desegregation plan, a district court has the authority to relinquish supervision and control of a school district in incremental stages, before full compliance has been achieved in every area of school operations, and may, while retaining jurisdiction over the case, determine that it will not order further remedies in areas where the school district is in compliance with the decree. Pp. 485-492. (a) Green held that the duty of a former de jure district is to take all necessary steps to convert to a unitary system in which racial discrimination is eliminated, set forth factors that measure unitariness, and instructed the district courts to fashion remedies that address all these factors. Although the unitariness concept is helpful in defining the scope of the district court's authority, the term "unitary" does not have a fixed meaning or content, and does not confine the court's discretion in a way that departs from traditional equitable principles. Under such principles, a court has the inherent capacity to adjust remedies in a feasible and practical way to correct the constitutional violation, Swann, supra, at 15-16, with the end purpose of restoring state and local authorities to the control of a school system that is operating in compliance, see, e.g., Milliken v. Bradley, 433 U.S. 267, 280 -281. Where justified by the facts of the case, incremental or partial withdrawal of judicial supervision and control in areas of compliance, and retention of jurisdiction over the case with continuing supervision in areas of noncompliance, provides an orderly means for fulfilling this purpose. In particular, the court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations. See Pasadena Bd. of Education v. Spangler, 427 U.S. 424, 436 . Pp. 485-491. (b) Among the factors which must inform the court's discretion to order the incremental withdrawal of its supervision in an equitable manner are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of control is necessary or practicable to achieve compliance in other areas; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the decree and to those statutory and constitutional provisions that were the predicate for judicial intervention in the first instance. In considering these factors, a court should give particular attention to the school system's record of compliance; i.e., whether its policies form a consistent [503 U.S. 467, 469] pattern of lawful conduct directed to eliminating earlier violations. And with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision. Pp. 491-492. 2. The Court of Appeals erred in holding that, as a matter of law, the District Court had no discretion to permit DCSS to regain control over student assignments and three other Green factors, while retaining supervision over faculty assignments and the quality of education. Pp. 492-500. (a) The District Court exercised its discretion appropriately in addressing the Green elements, inquiring into quality of education, and determining whether minority students were being disadvantaged in ways that required the formulation of new and further remedies in areas of noncompliance. This approach illustrates that the Green factors need not be a rigid framework, and demonstrates the proper use of equitable discretion. By withdrawing control over areas where judicial supervision is no longer needed, a district court can concentrate its own and the school district's resources on the areas where the effects of de jure discrimination have not been eliminated and further action is necessary. Pp. 492-493. (b) The related premises underlying the Court of Appeals' rejection of the District Court's order - first, that, given noncompliance in some discrete categories, there can be no partial withdrawal of judicial control; and second, until there is full compliance, Swann, supra, requires that heroic measures be taken to ensure racial balance in student assignments system wide - are incorrect under this Court's analysis and precedents. Racial balance is not to be achieved for its own sake, but is to be pursued only when there is a causal link between an imbalance and the constitutional violation. Once racial imbalance traceable to the constitutional violation has been remedied, a school district is under no duty to remedy an imbalance that is caused by demographic factors. Id., at 31-32. The decree here accomplished its objective of desegregation in student assignments in the first year of its operation, and the District Court's finding that the subsequent resegregation is attributable to independent demographic forces is credible. A proper rule must be based on the necessity to find a feasible remedy that ensures systemwide compliance with the decree and that is directed to curing the effect of the specific violation. Pp. 493-497. (c) Resolution of the question whether retention of judicial control over student attendance is necessary or practicable to achieve compliance in other facets of DCSS must await further proceedings on remand. The District Court did not have this Court's analysis before it when [503 U.S. 467, 470] it addressed the faculty assignment problem, and specific findings and conclusions should be made on whether student reassignments would be a proper way to remedy the defect. Moreover, the District Court's praise for DCSS' successes, dedication, and progress, and its failure to find that DCSS had acted in bad faith or engaged in post-decree acts of discrimination with respect to those areas where compliance had not been achieved, may not be the equivalent of the necessary finding that DCSS has an affirmative commitment to comply in good faith with the entirety of the desegregation plan. Pp. 497-500. 887 F.2d 1438 (CA 11 1989), reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and SOUTER, JJ., joined. SCALIA, J., post, p. 500, and SOUTER, J., post, p. 507, filed concurring opinions. BLACKMUN, J., filed an opinion concurring in the judgment, in which STEVENS and O'CONNOR, JJ., joined, post, p. 509. THOMAS, J., took no part in the consideration or decision of the case. Rex E. Lee argued the cause for petitioners. With him on the briefs were Carter G. Phillips, Mark D. Hopson, Gary M. Sams, Charles L. Weatherly, and J. Stanley Hawkins. Solicitor General Starr argued the cause for the United States as amicus Curiae in support of petitioners. With him on the brief were Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Deputy Assistant Attorney General Clegg, Ronald J. Mann, David K. Flynn, and Lisa J. Stark. Christopher A. Hansen argued the cause for respondents. With him on the brief were Steven R. Shapiro, Helen Hershkoff, John A. Powell, and Willie Abrams. * [Footnote * Briefs of amici curiae urging reversal were filed for the Intervenors in Carlin v. Board of Education San Diego Unified School District by Elmer Enstrom, Jr.; and for the Southeastern Legal Foundation, Inc., by G. Stephen Parker. Briefs of amici curiae urging affirmance were filed for the Lawyers' Committee for Civil Rights Under Law by Norman Redlich and Burke Marshall; and for the NAACP, DeKalb County, Georgia, Branch et al. by William H. Allen and Elliott Schulder. Charles S. Johnson III filed a brief for plaintiff-intervenors as amici curiae. [503 U.S. 467, 471] JUSTICE KENNEDY delivered the opinion of the Court. DeKalb County, Georgia, is a major suburban area of Atlanta. This case involves a court-ordered desegregation decree for the DeKalb County School System (DCSS). DCSS now serves some 73,000 students in kindergarten through high school, and is the 32d largest elementary and secondary school system in the Nation. DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since 1969, when it was ordered to dismantle its dual school system. In 1986, petitioners filed a motion for final dismissal. The District Court ruled that DCSS had not achieved unitary status in all respects, but had done so in student attendance and three other categories. In its order, the District Court relinquished remedial control as to those aspects of the system in which unitary status had been achieved, and retained supervisory authority only for those aspects of the school system in which the district was not in full compliance. The Court of Appeals for the Eleventh Circuit reversed, 887 F.2d 1438 (1989), holding that a district court should retain full remedial authority over a school system until it achieves unitary status in six categories at the same time for several years. We now reverse the judgment of the Court of Appeals and remand, holding that a district court is permitted to withdraw judicial supervision with respect to discrete categories in which the school district has achieved compliance with a court-ordered desegregation plan. A district court need not retain active control over every aspect of school administration until a school district has demonstrated unitary status in all facets of its system. I A For decades before our decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), and our mandate in Brown [503 U.S. 467, 472] v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II), which ordered school districts to desegregate with "all deliberate speed," DCSS was segregated by law. DCSS initial response to the mandate of Brown II was an all-too-familiar one. Interpreting "all deliberate speed" as giving latitude to delay steps to desegregate, DCSS took no positive action toward desegregation until the 1966-1967 school year, when it did nothing more than adopt a freedom of choice transfer plan. Some black students chose to attend former de jure white schools, but the plan had no significant effect on the former de jure black schools. In 1968, we decided Green v. School Bd. of New Kent County, 391 U.S. 430 . We held that adoption of a freedom of choice plan does not, by itself, satisfy a school district's mandatory responsibility to eliminate all vestiges of a dual system. Green was a turning point in our law in a further respect. Concerned by more than a decade of inaction, we stated that "`[t]he time for mere "deliberate speed" has run out.'" Id., at 438, quoting Griffin v. Prince Edward County School Bd., 377 U.S. 218, 234 (1964). We said that the obligation of school districts once segregated by law was to come forward with a plan that "promises realistically to work, and promises realistically to work now." 391 U.S., at 439 (emphasis in original). The case before us requires an understanding and assessment of how DCSS responded to the directives set forth in Green. Within two months of our ruling in Green, respondents, who are black schoolchildren and their parents, instituted this class action in the United States District Court for the Northern District of Georgia. After the suit was filed, DCSS voluntarily began working with the Department of Health, Education, and Welfare to devise a comprehensive and final plan of desegregation. The District Court, in June, 1969, entered a consent order approving the proposed plan, which was to be implemented in the 1969-1970 school year. The order abolished the freedom of choice plan and adopted [503 U.S. 467, 473] a neighborhood school attendance plan that had been proposed by DCSS and accepted by the Department of Health, Education, and Welfare subject to a minor modification. Under the plan, all of the former de jure black schools were closed, and their students were reassigned among the remaining neighborhood schools. The District Court retained jurisdiction. Between 1969 and 1986, respondents sought only infrequent and limited judicial intervention into the affairs of DCSS. They did not request significant changes in student attendance zones or student assignment policies. In 1976, DCSS was ordered to expand its Majority-to-Minority (M-to-M) student transfer program, allowing students in a school where they are in the majority race to transfer to a school where they are in the minority; to establish a biracial committee to oversee the transfer program and future boundary line changes; and to reassign teachers so that the ratio of black to white teachers in each school would be, in substance, similar to the racial balance in the school population systemwide. From 1977 to 1979, the District Court approved a boundary line change for one elementary school attendance zone and rejected DCSS proposals to restrict the M-to-M transfer program. In 1983, DCSS was ordered to make further adjustments to the M-to-M transfer program. In 1986, petitioners filed a motion for final dismissal of the litigation. They sought a declaration that DCSS had satisfied its duty to eliminate the dual education system, that is to say, a declaration that the school system had achieved unitary status. Green, supra, at 441. The District Court approached the question whether DCSS had achieved unitary status by asking whether DCSS was unitary with respect to each of the factors identified in Green. The court considered an additional factor that is not named in Green: the quality of education being offered to the white and black student populations. [503 U.S. 467, 474] The District Court found DCSS to be "an innovative school system that has traveled the often long road to unitary status almost to its end," noting that the court has continually been impressed by the successes of the DCSS and its dedication to providing a quality education for all students within that system." App. to Pet. for Cert. 71a. It found that DCSS is a unitary system with regard to student assignments, transportation, physical facilities, and extracurricular activities, and ruled that it would order no further relief in those areas. The District Court stopped short of dismissing the case, however, because it found that DCSS was not unitary in every respect. The court said that vestiges of the dual system remain in the areas of teacher and principal assignments, resource allocation, and quality of education. DCSS was ordered to take measures to address the remaining problems. B Proper resolution of any desegregation case turns on a careful assessment of its facts. Green, supra, at 439. Here, as in most cases where the issue is the degree of compliance with a school desegregation decree, a critical beginning point is the degree of racial imbalance in the school district, that is to say, a comparison of the proportion of majority to minority students in individual schools with the proportions of the races in the district as a whole. This inquiry is fundamental, for under the former de jure regimes, racial exclusion was both the means and the end of a policy motivated by disparagement, of or hostility towards, the disfavored race. In accord with this principle, the District Court began its analysis with an assessment of the current racial mix in the schools throughout DCSS and the explanation for the racial imbalance it found. The Respondents did not contend on appeal that the findings of fact were clearly erroneous, and the Court of Appeals did not find them to be erroneous. The Court of Appeals did disagree with the conclusion reached [503 U.S. 467, 475] by the District Court respecting the need for further supervision of racial balance in student assignments. In the extensive record that comprises this case, one fact predominates: Remarkable changes in the racial composition of the county presented DCSS and the District Court with a student population in 1986 far different from the one they set out to integrate in 1969. Between 1950 and 1985, DeKalb County grew from 70,000 to 450,000 in total population, but most of the gross increase in student enrollment had occurred by 1969, the relevant starting date for our purposes. Although the public school population experienced only modest changes between 1969 and 1986 (remaining in the low 70,000's), a striking change occurred in the racial proportions of the student population. The school system that the District Court ordered desegregated in 1969 had 5.6% black students; by 1986, the percentage of black students was 47%. To compound the difficulty of working with these radical demographic changes, the northern and southern parts of the county experienced much different growth patterns. The District Court found that, "[a]s the result of these demographic shifts, the population of the northern half of DeKalb County is now predominantly white, and the southern half of DeKalb County is predominantly black." App. to Pet. for Cert. 38a. In 1970, there were 7,615 nonwhites living in the northern part of DeKalb County and 11,508 nonwhites in the southern part of the county. By 1980, there were 15,365 nonwhites living in the northern part of the county, and 87,583 nonwhites in the southern part. Most of the growth in the nonwhite population in the southern portion of the county was due to the migration of black persons from the city of Atlanta. Between 1975 and 1980 alone, approximately 64,000 black citizens moved into southern DeKalb County, most of them coming from Atlanta. During the same period, approximately 37,000 white citizens moved out of southern DeKalb County to the surrounding counties. [503 U.S. 467, 476] The District Court made findings with respect to the number of nonwhite citizens in the northern and southern parts of the county for the years 1970 and 1980 without making parallel findings with respect to white citizens. Yet a clear picture does emerge. During the relevant period, the black population in the southern portion of the county experienced tremendous growth, while the white population did not, and the white population in the northern part of the county experienced tremendous growth, while the black population did not. The demographic changes that occurred during the course of the desegregation order are an essential foundation for the District Court's analysis of the current racial mix of DCSS. As the District Court observed, the demographic shifts have had "an immense effect on the racial compositions of the DeKalb County schools." Ibid. From 1976 to 1986, enrollment in elementary schools declined overall by 15%, while black enrollment in elementary schools increased by 86%. During the same period, overall high school enrollment declined by 16, while black enrollment in high schools increased by 119%. These effects were even more pronounced in the southern portion of DeKalb County. Concerned with racial imbalance in the various schools of the district, respondents presented evidence that, during the 1986-1987 school year, DCSS had the following features: (1) 47% of the students attending DCSS were black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more than 20% more blacks than the system-wide average; (4) 27% of white students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the systemwide average; (6) of the 22 DCSS high schools, five had student populations that were more than 90% black, while five other schools had student populations that were more than 80% white; and (7) of the 74 elementary schools [503 U.S. 467, 477] in DCSS, 18 are over 90% black, while 10 are over 90% white. Id., at 31a. (The Respondents' evidence on these points treated all nonblack students as white. The District Court noted that there was no evidence that nonblack minority students constituted even 1% of DCSS student population.) Respondents argued in the District Court that this racial imbalance in student assignment was a vestige of the dual system, rather than a product of independent demographic forces. In addition to the statistical evidence that the ratio of black students to white students in individual schools varied to a significant degree from the system-wide average, respondents contended that DCSS had not used all available desegregative tools in order to achieve racial balancing. Respondents pointed to the following alleged shortcomings in DCSS desegregative efforts: (1) DCSS did not break the county into subdistricts and racially balance each subdistrict; (2) DCSS failed to expend sufficient funds for minority learning opportunities; (3) DCSS did not establish community advisory organizations; (4) DCSS did not make full use of the freedom of choice plan; (5) DCSS did not cluster schools, that is, it did not create schools for separate grade levels which could be used to establish a feeder pattern; (6) DCSS did not institute its magnet school program as early as it might have; and (7) DCSS did not use busing to facilitate urban to suburban exchanges. According to the District Court, respondents conceded that the 1969 order assigning all students to their neighborhood schools "effectively desegregated the DCSS for a period of time" with respect to student assignment. Id., at 35a. The District Court noted, however, that, despite this concession respondents contended there was an improper imbalance in two schools even in 1969. Respondents made much of the fact that, despite the small percentage of blacks in the county in 1969, there were then two schools that contained a majority of black students: Terry Mill Elementary School [503 U.S. 467, 478] was 76% black, and Stoneview Elementary School was 51% black. The District Court found the racial imbalance in these schools was not a vestige of the prior de jure system. It observed that both the Terry Mill and Stoneview schools were de jure white schools before the freedom of choice plan was put in place. It cited expert witness testimony that Terry Mill had become a majority black school as a result of demographic shifts unrelated to the actions of petitioners or their predecessors. In 1966, the overwhelming majority of students at Terry Mill were white. By 1967, due to migration of black citizens from Atlanta into DeKalb County - and into the neighborhood surrounding the Terry Mill school in particular - 23% of the students at Terry Mill were black. By 1968, black students constituted 50% of the school population at Terry Mill. By 1969, when the plan was put into effect, the percentage of black students had grown to 76. In accordance with the evidence of demographic shifts, and in the absence of any evidence to suggest that the former dual system contributed in any way to the rapid racial transformation of the Terry Mill student population, the District Court found that the pre-1969 unconstitutional acts of petitioners were not responsible for the high percentage of black students at the Terry Mill school in 1969. Its findings in this respect are illustrative of the problems DCSS and the District Court faced in integrating the whole district. Although the District Court found that DCSS was desegregated for at least a short period under the court-ordered plan of 1969, it did not base its finding that DCSS had achieved unitary status with respect to student assignment on that circumstance alone. Recognizing that "[t]he achievement of unitary status in the area of student assignment cannot be hedged on the attainment of such status for a brief moment," id., at 37a, the District Court examined the interaction between DCSS policy and demographic shifts in DeKalb County. [503 U.S. 467, 479] The District Court noted that DCSS had taken specific steps to combat the effects of demographics on the racial mix of the schools. Under the 1969 order, a biracial committee had reviewed all proposed changes in the boundary lines of school attendance zones. Since the original desegregation order, there had been about 170 such changes. It was found that only three had a partial segregative effect. An expert testified, and the District Court found, that even those changes had no significant effect on the racial mix of the school population, given the tremendous demographic shifts that were taking place at the same time. The District Court also noted that DCSS, on its own initiative, started an M-to-M program in the 1972 school year. The program was a marked success. Participation increased with each passing year, so that, in the 1986-1987 school year, 4,500 of the 72,000 students enrolled in DCSS participated. An expert testified that the impact of an M-to-M program goes beyond the number of students transferred, because students at the receiving school also obtain integrated learning experiences. The District Court found that about 19% of the students attending DCSS had an integrated learning experience as a result of the M-to-M program. Id., at 40a. In addition, in the 1980's, DCSS instituted a magnet school program in schools located in the middle of the county. The magnet school programs included a performing arts program, two science programs, and a foreign language program. There was testimony in the District Court that DCSS also had plans to operate additional magnet programs in occupational education and gifted and talented education, as well as a preschool program and an open campus. By locating these programs in the middle of the county, DCSS sought to attract black students from the southern part of the county and white students from the northern part. Further, the District Court found that DCSS operates a number of experience programs integrated by race, including [503 U.S. 467, 480] a writing center for fifth and seventh graders, a driving range, summer school programs, and a dialectical speech program. DCSS employs measures to control the racial mix in each of these special areas. In determining whether DCSS has achieved unitary status with respect to student assignment, the District Court saw its task as one of deciding if petitioners "have accomplished maximum practical desegregation of the DCSS, or if the DCSS must still do more to fulfill their affirmative constitutional duty." Id., at 41a. Petitioners and respondents presented conflicting expert testimony about the potential effects that desegregative techniques not deployed might have had upon the racial mix of the schools. The District Court found that petitioners' experts were more reliable, citing their greater familiarity with DCSS, their experience, and their standing within the expert community. The District Court made these findings: "[The actions of DCSS] achieved maximum practical desegregation from 1969 to 1986. The rapid population shifts in DeKalb County were not caused by any action on the part of the DCSS. These demographic shifts were inevitable as the result of suburbanization, that is, work opportunities arising in DeKalb County as well as the City of Atlanta, which attracted blacks to DeKalb; the decline in the number of children born to white families during this period while the number of children born to black families did not decrease; blockbusting of formerly white neighborhoods leading to selling and buying of real estate in the DeKalb area on a highly dynamic basis; and the completion of Interstate 20, which made access from DeKalb County into the City of Atlanta much easier. . . . There is no evidence that the school system's previous unconstitutional conduct may have contributed to this segregation. This court is convinced that any further actions taken by defendants, while the actions might have made marginal adjustments in the [503 U.S. 467, 481] population trends, would not have offset the factors that were described above and the same racial segregation would have occurred at approximately the same speed. Id., at 44a-45a. The District Court added: "[A]bsent massive bussing, which is not considered as a viable option by either the parties or this court, the magnet school program and the M-to-M program, which the defendants voluntarily implemented and to which the defendants obviously are dedicated, are the most effective ways to deal with the effects on student attendance of the residential segregation existing in DeKalb County at this time. Id., at 46a. Having found no constitutional violation with respect to student assignment, the District Court next considered the other Green factors, beginning with faculty and staff assignments. The District Court first found that DCSS had fulfilled its constitutional obligation with respect to hiring and retaining minority teachers and administrators. DCSS has taken active steps to recruit qualified black applicants, and has hired them in significant numbers, employing a greater percentage of black teachers than the statewide average. The District Court also noted that DCSS has an "equally exemplary record" in retention of black teachers and administrators. App. to pet. for Cert. 49a. Nevertheless, the District Court found that DCSS had not achieved or maintained a ratio of black to white teachers and administrators in each school to approximate the ratio of black to white teachers and administrators throughout the system. See Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (CA5 1969), cert. denied, 396 U.S. 1032 (1970). In other words, a racial imbalance existed in the assignment of minority teachers and administrators. The District Court found that, in the 1984-1985 school year, seven schools deviated by more than 10 from the system-wide average [503 U.S. 467, 482] of 26.4 minority teachers in elementary schools and 24.9 minority teachers in high schools. The District Court also found that black principals and administrators were over-represented in schools with high percentages of black students and underrepresented in schools with low percentages of black students. The District Court found the crux of the problem to be that DCSS has relied on the replacement process to attain a racial balance in teachers and other staff and has avoided using mandatory reassignment. DCSS gave as its reason for not using mandatory reassignment that the competition among local school districts is stiff, and that it is difficult to attract and keep qualified teachers if they are required to work far from their homes. In fact, because teachers prefer to work close to their homes, DCSS has a voluntary transfer program in which teachers who have taught at the same school for a period of three years may ask for a transfer. Because most teachers request to be transferred to schools near their homes, this program makes compliance with the objective of racial balance in faculty and staff more difficult. The District Court stated that it was not "unsympathetic to the difficulties that DCSS faces in this regard," but held that the law of the Circuit requires DCSS to comply with Singleton. App. to Pet. for Cert. 53a. The court ordered DCSS to devise a plan to achieve compliance with Singleton, noting that "[i]t would appear that such compliance will necessitate reassignment of both teachers and principals." App. to Pet. for Cert. 58a. With respect to faculty, the District Court noted that meeting Singleton would not be difficult, citing petitioners' own estimate that most schools' faculty could conform by moving, at most, two or three teachers. Addressing the more ineffable category of quality of education, the District Court rejected most of respondents' contentions that there was racial disparity in the provision of certain educational resources (e.g., teachers with advanced [503 U.S. 467, 483] degrees, teachers with more experience, library books), contentions made to show that black students were not being given equal educational opportunity. The District Court went further, however, and examined the evidence concerning achievement of black students in DCSS. It cited expert testimony praising the overall educational program in the district, as well as objective evidence of Black achievement: Black students at DCSS made greater gains on the Iowa Tests of Basic Skills than white students, and black students at DCSS are more successful than black students nationwide on the Scholastic Aptitude Test. It made the following finding: "While there will always be something more that the DCSS can do to improve the chances for black students to achieve academic success, the court cannot find, as plaintiffs urge, that the DCSS has been negligent in its duties to implement programs to assist black students. The DCSS is a very innovative school system. It has implemented a number of programs to enrich the lives and enhance the academic potential of all students, both blacks and whites. Many remedial programs are targeted in the majority black schools. Programs have been implemented to involve the parents and offset negative socioeconomic factors. If the DCSS has failed in any way in this regard, it is not because the school system has been negligent in its duties. App. to Pet. for Cert. 69a-70a (footnote omitted). Despite its finding that there was no intentional violation, the District Court found that DCSS had not achieved unitary status with respect to quality of education because teachers in schools with disproportionately high percentages of white students tended to be better educated and have more experience than their counterparts in schools with disproportionately high percentages of black students, and because per-pupil expenditures in majority white schools exceeded [503 U.S. 467, 484] per-pupil expenditures in majority black schools. From these findings, the District Court ordered DCSS to equalize spending and remedy the other problems. The final Green factors considered by the District Court were: (1) physical facilities, (2) transportation, and (3) extracurricular activities. The District Court noted that, although respondents expressed some concerns about the use of portable classrooms in schools in the southern portion of the county, they in effect conceded that DCSS has achieved unitary status with respect to physical facilities. In accordance with its factfinding, the District Court held that it would order no further relief in the areas of student assignment, transportation, physical facilities, and extracurricular activities. The District Court, however, did order DCSS to establish a system to balance teacher and principal assignments and to equalize per-pupil expenditures throughout DCSS. Having found that blacks were represented on the school board and throughout DCSS administration, the District Court abolished the biracial committee as no longer necessary. Both parties appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals affirmed the District Court's ultimate conclusion that DCSS has not yet achieved unitary status, but reversed the District Court's ruling that DCSS has no further duties in the area of student assignment. 887 F.2d 1438 (1989). The Court of Appeals held that the District Court erred by considering the six Green factors as separate categories. The Court of Appeals rejected the District Court's incremental approach, an approach that has also been adopted by the Court of Appeals for the First Circuit, Morgan v. Nucci, 831 F.2d 313, 318-319 (1987), and held that a school system achieves unitary status only after it has satisfied all six factors at the same time for several years. 887 F.2d, at 1446. Because, under this test, DCSS had not achieved unitary status at any time, the Court of Appeals held that DCSS could "not shirk [503 U.S. 467, 485] its constitutional duties by pointing to demographic shifts occurring prior to unitary status." Id., at 1448. The Court of Appeals held that petitioners bore the responsibility for the racial imbalance, and, in order to correct that imbalance, would have to take actions that "may be administratively awkward, inconvenient, and even bizarre in some situations," Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 28 (1971), such as pairing and clustering of schools, drastic gerrymandering of school zones, grade reorganization, and busing. We granted certiorari, 498 U.S. 1081 (1991). II Two principal questions are presented. The first is whether a district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree if other aspects of the system remain in noncompliance. As we answer this question in the affirmative, the second question is whether the Court of Appeals erred in reversing the District Court's order providing for incremental withdrawal of supervision in all the circumstances of this case. A The duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system. This is required in order to ensure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no longer present. This was the rationale and the objective of Brown I and Brown II. In Brown I, we said: "To separate [black students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." 347 U.S., at 494 . We [503 U.S. 467, 486] quoted a finding of the three-judge District Court in the underlying Kansas case that bears repeating here: "`Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.'" Ibid. The objective of Brown I was made more specific by our holding in Green that the duty of a former de jure district is to "take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." 391 U.S., at 437 -438. We also identified various parts of the school system which, in addition to student attendance patterns, must be free from racial discrimination before the mandate of Brown is met: faculty, staff, transportation, extracurricular activities, and facilities. 391 U.S., at 435 . The Green factors are a measure of the racial identifiability of schools in a system that is not in compliance with Brown, and we instructed the District Courts to fashion remedies that address all these components of elementary and secondary school systems. The concept of unitariness has been a helpful one in defining the scope of the district courts' authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district courts' remedial control ought to be modified, lessened, or withdrawn. But, as we explained last Term in Board of Ed. of Oklahoma City of Public [503 U.S. 467, 487] Schools v. Dowell, 498 U.S. 237, 245 -246 (1991), the term "unitary" is not a precise concept: "[I]t is a mistake to treat words such as `dual' and "unitary" as if they were actually found in the Constitution. . . . Courts have used the terms `dual' to denote a school system which has engaged in intentional segregation of students by race, and `unitary' to describe a school system which has been brought into compliance with the command of the Constitution. We are not sure how useful it is to define these terms more precisely, or to create subclasses within them." It follows that we must be cautious not to attribute to the term a utility it does not have. The term "unitary" does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles. That the term "unitary" does not have fixed meaning or content is not inconsistent with the principles that control the exercise of equitable power. The essence of a court's equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. In this respect, as we observed in Swann, "a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution." Swann, 402 U.S., at 15 -16. The requirement of a unitary school system must be implemented according to this prescription. Our application of these guiding principles in Pasadena Bd. of Education v. Spangler, 427 U.S. 424 (1976), is instructive. There we held that a District Court exceeded its remedial authority in requiring annual readjustment of school [503 U.S. 467, 488] attendance zones in the Pasadena school district when changes in the racial makeup of the schools were caused by demographic shifts "not attributed to any segregative acts on the part of the [school district]." Id., at 436. In so holding we said: "It may well be that petitioners have not yet totally achieved the unitary system contemplated by . . . Swann. There has been, for example, dispute as to the petitioners' compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators. See 384 F.Supp. 846 (1974), vacated, 537 F.2d 1031 (1976). But that does not undercut the force of the principle underlying the quoted language from Swann. In this case, the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena's public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the District Court was not entitled to require the [Pasadena Unified School District] to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns." Ibid. See also id., at 438, n. 5 ("Counsel for the original plaintiffs has urged, in the courts below and before us, that the District Court's perpetual `no majority of any minority' requirement was valid and consistent with Swann, at least until the school system achieved `unitary' status in all other respects, such as the hiring and promoting of teachers and administrators. Since we have concluded that the case is moot with [503 U.S. 467, 489] regard to these plaintiffs, these arguments are not properly before us. It should be clear from what we have said that they have little substance"). Today, we make explicit the rationale that was central in Spangler. A federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control. This discretion derives both from the constitutional authority which justified its intervention in the first instance and its ultimate objectives in formulating the decree. The authority of the court is invoked at the outset to remedy particular constitutional violations. In construing the remedial authority of the district courts, we have been guided by the principles that "judicial powers may be exercised only on the basis of a constitutional violation," and that "the nature of the violation determines the scope of the remedy." Swann, supra, at 16. A remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation. We have said that the court's end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution. Milliken v. Bradley, 433 U.S. 267, 280 -281 (1977) ("[T]he federal courts, in devising a remedy, must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution"). Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court's duty to return the operations and control of schools to local authorities. In Dowell, we emphasized that federal judicial supervision of local school systems was intended as a "temporary measure." 498 U.S., at 247 . Although this temporary measure has lasted decades, the ultimate objective has not changed - to return school districts to the control of local authorities. Just as a court has the obligation [503 U.S. 467, 490] at the outset of a desegregation decree to structure a plan so that all available resources of the court are directed to comprehensive supervision of its decree, so too must a court provide an orderly means for withdrawing from control when it is shown that the school district has attained the requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is an appropriate means to this end. As we have long observed, "local autonomy of school districts is a vital national tradition." Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 410 (1977) (Dayton I). Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system. When the school district and all state entities participating with it in operating the schools make decisions in the absence of judicial supervision, they can be held accountable to the citizenry, to the political process, and to the courts in the ordinary course. As we discuss below, one of the prerequisites to relinquishment of control in whole or in part is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution. Yet it must be acknowledged that the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility. We hold that, in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations. While retaining jurisdiction over the case, the court may determine that it will not order further [503 U.S. 467, 491] remedies in areas where the school district is in compliance with the decree. That is to say, upon a finding that a school system subject to a court-supervised desegregation plan is in compliance in some but not all areas, the court, in appropriate cases, may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations. A court's discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. In considering these factors, a court should give particular attention to the school system's record of compliance. A school system is better positioned to demonstrate its good faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, [503 U.S. 467, 492] and the practicability and efficacy of various remedies can be evaluated with more precision. These are the premises that guided our formulation in Dowell of the duties of a district court during the final phases of a desegregation case: "The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable." 498 U.S., at 249 -250. B We reach now the question whether the Court of Appeals erred in prohibiting the District Court from returning to DCSS partial control over some of its affairs. We decide that the Court of Appeals did err in holding that, as a matter of law, the District Court had no discretion to permit DCSS to regain control over student assignment, transportation, physical facilities, and extracurricular activities, while retaining court supervision over the areas of faculty and administrative assignments and the quality of education, where full compliance had not been demonstrated. It was an appropriate exercise of its discretion for the District Court to address the elements of a unitary system discussed in Green, to inquire whether other elements ought to be identified, and to determine whether minority students were being disadvantaged in ways that required the formulation of new and further remedies to ensure full compliance with the court's decree. Both parties agreed that quality of education was a legitimate inquiry in determining DCSS' compliance with the desegregation decree, and the trial court found it workable to consider the point in connection with its findings on resource allocation. Its order retaining supervision over this aspect of the case has not been challenged by the parties, and we need not examine it except as it underscores the school district's record of compliance in some areas, but not others. The District Court's approach illustrates [503 U.S. 467, 493] that the Green factors need not be a rigid framework. It illustrates also the uses of equitable discretion. By withdrawing control over areas where judicial supervision is no longer needed, a district court can concentrate both its own resources and those of the school district on the areas where the effects of de jure discrimination have not been eliminated and further action is necessary in order to provide real and tangible relief to minority students. The Court of Appeals' rejection of the District Court's order rests on related premises: first, that, given noncompliance in some discrete categories, there can be no partial withdrawal of judicial control; and second, until there is full compliance, heroic measures must be taken to ensure racial balance in student assignments system wide. Under our analysis and our precedents, neither premise is correct. The Court of Appeals was mistaken in ruling that our opinion in Swann requires "awkward," "inconvenient," and "even bizarre" measures to achieve racial balance in student assignments in the late phases of carrying out a decree, when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district, but rather to independent demographic forces. In Swann, we undertook to discuss the objectives of a comprehensive desegregation plan and the powers and techniques available to a district court in designing it at the outset. We confirmed that racial balance in school assignments was a necessary part of the remedy in the circumstances there presented. In the case before us, the District Court designed a comprehensive plan for desegregation of DCSS in 1969, one that included racial balance in student assignments. The desegregation decree was designed to achieve maximum practicable desegregation. Its central remedy was the closing of black schools and the reassignment of pupils to neighborhood schools, with attendance zones that achieved racial balance. The plan accomplished its objective in the first year of operation, before dramatic demographic changes altered residential [503 U.S. 467, 494] patterns. For the entire 17-year period respondents raised no substantial objection to the basic student assignment system, as the parties and the District Court concentrated on other mechanisms to eliminate the de jure taint. That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors. Swann, 402 U.S., at 31 -32 ("Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary"). If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that condition must be remedied. The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation. The findings of the District Court that the population changes which occurred in DeKalb County were not caused by the policies of the school district, but rather by independent factors, are consistent with the mobility that is a distinct characteristic of our society. In one year (from 1987 to 1988), over 40 million Americans, or 17.6% of the total population, [503 U.S. 467, 495] moved households. U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States, p. 19, Table 25 (111th ed. 1991). Over a third of those people moved to a different county, and over six million migrated between States. Ibid. In such a society, it is inevitable that the demographic makeup of school districts, based as they are on political subdivisions such as counties and municipalities, may undergo rapid change. The effect of changing residential patterns on the racial composition of schools, though not always fortunate, is somewhat predictable. Studies show a high correlation between residential segregation and school segregation. Wilson & Taeuber, Residential and School Segregation: Some Tests of Their Association, in Demography and Ethnic Groups 57-58 (F. Bean & W. Frisbie eds. 1978). The District Court in this case heard evidence tending to show that racially stable neighborhoods are not likely to emerge, because whites prefer a racial mix of 80 white and 20% black, while blacks prefer a 50-50 mix. Where resegregation is a product not of state action, but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies. In one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must we overstate its consequences [503 U.S. 467, 496] in fixing legal responsibilities. The vestiges of segregation that are the concern of the law in a school case may be subtle and intangible, but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation. And the law need not proceed on that premise. As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith. In light of its finding that the demographic changes in DeKalb County are unrelated to the prior violation, the District Court was correct to entertain the suggestion that DCSS had no duty to achieve system wide racial balance in the student population. It was appropriate for the District Court to examine the reasons for the racial imbalance before ordering an impractical, and no doubt massive, expenditure of funds to achieve racial balance after 17 years of efforts to implement the comprehensive plan in a district where there were fundamental changes in demographics, changes not attributable to the former de jure regime or any later actions by school officials. The District Court's determination to order instead the expenditure of scarce resources in areas such as the quality of education, where full compliance had not yet been achieved, underscores the uses of discretion in framing equitable remedies. To say, as did the Court of Appeals, that a school district must meet all six Green factors before the trial court can declare the system unitary and relinquish its control over school attendance zones, and to hold further that racial balancing by all necessary means is required in the interim, is [503 U.S. 467, 497] simply to vindicate a legal phrase. The law is not so formalistic. A proper rule must be based on the necessity to find a feasible remedy that ensures system-wide compliance with the court decree and that is directed to curing the effects of the specific violation. We next consider whether retention of judicial control over student attendance is necessary or practicable to achieve compliance in other facets of the school system. Racial balancing in elementary and secondary school student assignments may be a legitimate remedial device to correct other fundamental inequities that were themselves caused by the constitutional violation. We have long recognized that the Green factors may be related or interdependent. Two or more Green factors may be intertwined or synergistic in their relation, so that a constitutional violation in one area cannot be eliminated unless the judicial remedy addresses other matters as well. We have observed, for example, that student segregation and faculty segregation are often related problems. See Dayton Bd. of Education v. Brinkman, 443 U.S. 526, 536 (1979) (Dayton II) ("`[P]urposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices'"); Rogers v. Paul, 382 U.S. 198, 200 (1965) (students have standing to challenge racial allocation of faculty because "racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils"). As a consequence, a continuing violation in one area may need to be addressed by remedies in another. See, e.g., Bradley v. Richmond School Bd., 382 U.S. 103, 105 (1965) (per curiam) ("There is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative"); Vaughns v. Board of Education of Prince George's County, 742 F.Supp. 1275, 1291 (D.Md. 1990) ("[T]he components of [503 U.S. 467, 498] a school desegregation plan are interdependent upon, and interact with, one another, so that changes with respect to one component may impinge upon the success or failure of another"). There was no showing that racial balancing was an appropriate mechanism to cure other deficiencies in this case. It is true that the school district was not in compliance with respect to faculty assignments, but the record does not show that student reassignments would be a feasible or practicable way to remedy this defect. To the contrary, the District Court suggests that DCSS could solve the faculty assignment problem by reassigning a few teachers per school. The District Court, not having our analysis before it, did not have the opportunity to make specific findings and conclusions on this aspect of the case, however. Further proceedings are appropriate for this purpose. The requirement that the school district show its good-faith commitment to the entirety of a desegregation plan so that parents, students, and the public have assurance against further injuries or stigma also should be a subject for more specific findings. We stated in Dowell that the good-faith compliance of the district with the court order over a reasonable period of time is a factor to be considered in deciding whether or not jurisdiction could be relinquished. Dowell, 498 U.S., at 249 -250 ("The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable"). A history of good faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board's representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future. See Morgan v. Nucci, 831 [503 U.S. 467, 499] F.2d, at 321 ("A finding of good faith . . . reduces the possibility that a school system's compliance with court orders is but a temporary constitutional ritual"). When a school district has not demonstrated good faith under a comprehensive plan to remedy ongoing violations, we have, without hesitation, approved comprehensive and continued district court supervision. See Columbus Bd. of Education v. Penick, 443 U.S. 449, 461 (1979) (predicating liability in part on the finding that the school board "`never actively set out to dismantle [the] dual system,'" Penick v. Columbus Bd. of Education, 429 F.Supp. 229, 260 (SD Ohio 1977)); Dayton II, supra, at 534 (adopting Court of Appeals holding that the "intentionally segregative impact of various practices since 1954 . . . were of systemwide import, and an appropriate basis for a systemwide remedy"). In contrast to the circumstances in Penick and Brinkman, the District Court in this case stated that, throughout the period of judicial supervision, it has been impressed by the successes DCSS has achieved and its dedication to providing a quality education for all students, and that DCSS "has traveled the often long road to unitary status almost to its end." With respect to those areas where compliance had not been achieved, the District Court did not find that DCSS had acted in bad faith or engaged in further acts of discrimination since the desegregation plan went into effect. This, though, may not be the equivalent of a finding that the school district has an affirmative commitment to comply in good faith with the entirety of a desegregation plan, and further proceedings are appropriate for this purpose as well. The judgment is reversed, and the case is remanded to the Court of Appeals. It should determine what issues are open for its further consideration in light of the previous briefs and arguments of the parties and in light of the principles set forth in this opinion. [503 U.S. 467, 500] Thereupon it should order further proceedings as necessary or order an appropriate remand to the District Court. Each party is to bear its own costs. It is so ordered. JUSTICE THOMAS took no part in the consideration or decision of this case. JUSTICE SCALIA, concurring. The District Court in the present case found that the imbalances in student assignment were attributable to private demographic shifts, rather than governmental action. Without disturbing this finding, and without finding that revision of student assignments was necessary to remedy some other unlawful government action, the Court of Appeals ordered DeKalb County to institute massive busing and other programs to achieve integration. The Court convincingly demonstrates that this cannot be reconciled with our cases, and I join its opinion. Our decision will be of great assistance to the citizens of DeKalb County, who, for the first time since 1969, will be able to run their own public schools, at least so far as student assignments are concerned. It will have little effect, however, upon the many other school districts throughout the country that are still being supervised by federal judges, since it turns upon the extraordinarily rare circumstance of a finding that no portion of the current racial imbalance is a remnant of prior de jure discrimination. While it is perfectly appropriate for the Court to decide this case on that narrow basis, we must resolve - if not today, then soon - what is to be done in the vast majority of other districts where, though our cases continue to profess that judicial oversight of school operations is a temporary expedient, democratic processes remain suspended, with no prospect of restoration, 38 years after Brown v. Board of Education, 347 U.S. 483 (1954). [503 U.S. 467, 501] Almost a quarter of century ago, in Green v. School Bd., New Kent County, 391 U.S. 430, 437 -438 (1968), this Court held that school systems which had been enforcing de jure segregation at the time of Brown had not merely an obligation to assign students and resources on a race-neutral basis, but also an "affirmative duty" to "desegregate," that is, to achieve, insofar as practicable, racial balance in their schools. This holding has become such a part of our legal fabric that there is a tendency, reflected in the Court of Appeals opinion in this case, to speak as though the Constitution requires such racial balancing. Of course it does not: the Equal Protection Clause reaches only those racial imbalances shown to be intentionally caused by the State. As the Court reaffirms today, if "desegregation" (i.e., racial balancing) were properly to be ordered in the present case, it would be not because the extant racial imbalance in the DeKalb County School System public schools offends the Constitution, but rather because that imbalance is a "lingering effect" of the pre-1969 de jure segregation that offended the Constitution. For all our talk about "unitary status," "release from judicial supervision," and "affirmative duty to desegregate," the sole question in school desegregation cases (absent an allegation that current policies are intentionally discriminatory) is one of remedies for past violations. Identifying and undoing the effects of some violations of the law is easy. Where, for example, a tax is found to have been unconstitutionally imposed, calculating the funds derived from that tax (which must be refunded), and distinguishing them from the funds derived from other taxes (which may be retained), is a simple matter. That is not so with respect to the effects of unconstitutionally operating a legally segregated school system; they are uncommonly difficult to identify and to separate from the effects of other causes. But one would not know that from our instructions to the lower courts on this subject, which tend to be at a level of generality that assumes facile reduction to specifics. [503 U.S. 467, 502] "`[Desegregation] decrees,'" we have said, "`exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation,'" Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 247 (1991); Milliken v. Bradley, 433 U.S. 267, 282 (1977). We have never sought to describe how one identifies a condition as the effluent of a violation, or how a "vestige" or a "remnant" of past discrimination is to be recognized. Indeed, we have not even betrayed an awareness that these tasks are considerably more difficult than calculating the amount of taxes unconstitutionally paid. It is time for us to abandon our studied disregard of that obvious truth, and to adjust our jurisprudence to its reality. Since parents and school boards typically want children to attend schools in their own neighborhood, "[t]he principal cause of racial and ethnic imbalance in . . . public schools across the country - North and South - is the imbalance in residential patterns." Austin Independent School Dist. v. United States, 429 U.S. 990, 994 (1976) (Powell, J., concurring). That imbalance in residential patterns, in turn, "doubtless result[s] from a melange of past happenings prompted by economic considerations, private discrimination, discriminatory school assignments, or a desire to reside near people of one's own race or ethnic background." Columbus Bd. of Education v. Penick, 443 U.S. 449, 512 (1979) (REHNQUIST, J., dissenting); see also Pasadena Bd. of Education v. Spangler, 427 U.S. 424, 435 -437 (1976). Consequently, residential segregation "is a national, not a southern, phenomenon" which exists "regardless of the character of local laws and policies, and regardless of the extent of other forms of segregation or discrimination." Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 223 , and n. 9 (1973) (Powell, J., concurring in part and dissenting in part), quoting K. Taeuber, Negroes in Cities 36 (1965). [503 U.S. 467, 503] Racially imbalanced schools are, hence, the product of a blend of public and private actions, and any assessment that they would not be segregated, or would not be as segregated, in the absence of a particular one of those factors is guesswork. It is similarly guesswork, of course, to say that they would be segregated, or would be as segregated, in the absence of one of those factors. Only in rare cases such as this one and Spangler, see 427 U.S., at 435 -437, where the racial imbalance had been temporarily corrected after the abandonment of de jure segregation, can it be asserted with any degree of confidence that the past discrimination is no longer playing a proximate role. Thus, allocation of the burden of proof foreordains the result in almost all of the "vestige of past discrimination" cases. If, as is normally the case under our equal protection jurisprudence (and in the law generally), we require the plaintiffs to establish the asserted facts entitling them to relief - that the racial imbalance they wish corrected is at least in part the vestige of an old de jure system - the plaintiffs will almost always lose. Conversely, if we alter our normal approach and require the school authorities to establish the negative - that the imbalance is not attributable to their past discrimination - the plaintiffs will almost always win. See Penick, supra, at 471 (Stewart, J., concurring in result). Since neither of these alternatives is entirely palatable, an observer unfamiliar with the history surrounding this issue might suggest that we avoid the problem by requiring only that the school authorities establish a regime in which parents are free to disregard neighborhood school assignment, and to send their children (with transportation paid) to whichever school they choose. So long as there is free choice, he would say, there is no reason to require that the schools be made identical. The constitutional right is equal racial access to schools, not access to racially equal schools; whatever racial imbalances such a free choice system might produce would be the product of private forces. We apparently [503 U.S. 467, 504] envisioned no more than this in our initial post-Brown cases. * It is also the approach we actually adopted in Bazemore v. Friday, 478 U.S. 385, 407 -409 (1986), (White, J., concurring), which concerned remedies for prior de jure segregation of state university-operated clubs and services. But we ultimately charted a different course with respect to public elementary and secondary schools. We concluded in Green that a "freedom of choice" plan was not necessarily sufficient, 391 U.S., at 439 -440, and later applied this conclusion to all jurisdictions with a history of intentional segregation: "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a `loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments." Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 28 (1971). [503 U.S. 467, 505] Thus began judicial recognition of an "affirmative duty" to desegregate, id., at 15; Green, supra, at 437-438, achieved by allocating the burden of negating causality to the defendant. Our post-Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, thee arises a presumption, effectively irrebuttable (because the school district cannot prove the negative), that any current racial imbalance is the product of that violation, at least if the imbalance has continuously existed, see, e.g., Swann, supra, at 26; Keyes, 413 U.S., at 209 -210. In the context of elementary and secondary education, the presumption was extraordinary in law but not unreasonable in fact. "Presumptions normally arise when proof of one fact renders the existence of another fact `so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it.'" NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 788 -789 (1990), quoting E. Cleary, McCormick on Evidence 343, p. 969 (3d ed. 1984). The extent and recency of the prior discrimination, and the improbability that young children (or their parents) would use "freedom of choice" plans to disrupt existing patterns "warrant[ed] a presumption [that] schools that are substantially disproportionate in their racial composition" were remnants of the de jure system. Swann, supra, at 26. But granting the merits of this approach at the time of Green, it is now 25 years later. "From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." Dowell, 498 U.S. 247 (emphasis added). We envisioned it as temporary partly because "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools," Milliken v. Bradley, 418 U.S. 717, 741 , (1974) (Milliken I), and because no one's interest is furthered by subjecting the Nation's educational system to "judicial tutelage for the indefinite future." Dowell, supra, at 549; see also [503 U.S. 467, 506] Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 410 (1977); Spangler v. Pasadena City Bd of Education, 611 F.2d 1239, 1245, n. 5 (CA9 1979) (Kennedy, J., concurring). But we also evisioned it as temporary, I think, because the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past. Since a multitude of private factors has shaped school systems in the years after abandonment of de jure segregation - normal migration, population growth (as in this case), "white flight" from the inner cities, increases in the costs of new facilities - the percentage of the current makeup of school systems attributable to the prior, government-enforced discrimination has diminished with each passing year, to the point where it cannot realistically be assumed to be a significant factor. At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools. We are close to that time. While we must continue to prohibit, without qualification, all racial discrimination in the operation of public schools, and to afford remedies that eliminate not only the discrimination but its identified consequences, we should consider laying aside the extraordinary, and increasingly counterfactual, presumption of Green. We must soon revert to the ordinary principles of our law, of our democratic heritage, and of our educational tradition: that plaintiffs alleging equal protection violations must prove intent and causation, and not merely the existence of racial disparity, see Bazemore, supra, at 407-409; Washington v. Davis, 426 U.S. 229, 245 (1976); that public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents, see, e.g., Dowell, supra, at 248; Dayton, supra, at 410; Milliken I, supra, at [503 U.S. 467, 507] 741-742; and that it is "desirable" to permit pupils to attend "schools nearest their homes," Swann, supra, 402 U.S., at 28 . [Footnote * See, e.g., Cooper v. Aaron, 358 U.S. 1, 7 (1958) ("[O]bedience to the duty of desegregation would require the immediate general admission of Negro children . . . at particular schools"), Goss v. Board of Education of Knoxville, 373 U.S. 683, 687 (1963) (holding unconstitutional a minority-to-majority transfer policy which was unaccompanied by a policy allowing majority-to-minority transfers, but noting that, "if the transfer provisions were made available to all students, regardless of their race and regardless as well of the racial composition of the school to which he requested transfer, we would have an entirely different case. Pupils could then, at their option (or that of their parents), choose, entirely free of any imposed racial considerations, to remain in the school of their zone or transfer to another"). JUSTICE SOUTER, concurring. I join the Court's opinion holding that, where there are vestiges of a dual system in some of a judicially supervised school system's aspects, or Green-type factors, * a district court will retain jurisdiction over the system, but need not maintain constant supervision or control over factors as to which compliance has been achieved. I write separately only to explain my understanding of the enquiry required by a district court applying the principle we set out today. We recognize that, although demographic changes influencing the composition of a school's student population may well have no causal link to prior de jure segregation, judicial control of student assignments may still be necessary to remedy persisting vestiges of the unconstitutional dual system, such as remaining imbalance in faculty assignments. See ante at 497-498. This is, however, only one of several possible causal relationships between or among unconstitutional acts of school segregation and various Green-type factors. I think it is worth mentioning at least two others: the dual school system itself as a cause of the demographic shifts with which the district court is faced when considering a partial relinquishment of supervision, and a Green-type factor other than student assignments as a possible cause of imbalanced student assignment patterns in the future. The first would occur when demographic change toward segregated residential patterns is itself caused by past school segregation and the patterns of thinking that segregation creates. Such demographic change is not an independent, supervening cause of racial imbalance in the student body, and we have said before that, when demographic change is [503 U.S. 467, 508] not independent of efforts to segregate, the causal relationship may be considered in fashioning a school desegregation remedy. See Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 21 (1971). Racial imbalance in student assignments caused by demographic change is not insulated from federal judicial oversight where the demographic change is itself caused in this way, and before deciding to relinquish supervision and control over student assignments, a district court should make findings on the presence or absence of this relationship. The second and related causal relationship would occur after the district court has relinquished supervision over a remedied aspect of the school system, when future imbalance in that remedied Green-type factor (here, student assignments) would be caused by remaining vestiges of the dual system. Even after attaining compliance as to student composition, other factors such as racial composition of the faculty, quality of the physical plant, or per-pupil expenditures may leave schools racially identifiable. (In this very case, for example, there is a correlation in particular schools of overrepresentation of black principals and administrators, lower per pupil expenditures, and high percentages of black students. Moreover, the schools in the predominantly black southern section of the school district are the only ones that use "portable classrooms," i.e., trailers. See ante, at 481-482 484.) If such other factors leave a school identifiable as "black," as soon as the district court stops supervising student assignments, nearby white parents may move in the direction of racially identifiable "white" schools, or may simply move their children into these schools. In such a case, the vestige of discrimination in one factor will act as an incubator for resegregation in others. Before a district court ends its supervision of student assignments, then, it should make a finding that there is no immediate threat of unremedied Green-type factors causing population or student enrollment changes that in turn may imbalance student composition [503 U.S. 467, 509] in this way. And, because the district court retains jurisdiction over the case, it should, of course, reassert control over student assignments if it finds that this does happen. [Footnote * Green v. New Kent County School Bd. of, 391 U.S. 430 (1968). Green's list of specific factors, of course, need not be treated as exclusive. See ante, at 492-493. JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, concurring in the judgment. It is almost 38 years since this Court decided Brown v. Board of Education, 347 U.S. 483 (1954). In those 38 years, the students in DeKalb County, Ga., never have attended a desegregated school system even for one day. The majority of "black" students never have attended a school that was not disproportionately black. Ignoring this glaring dual character of the DeKalb County School System (DCSS), part "white" and part "black," the District Court relinquished control over student assignments, finding that the school district had achieved "unitary status" in that aspect of the system. No doubt frustrated by the continued existence of duality, the Court of Appeals ordered the school district to take extraordinary measures to correct all manifestations of this racial imbalance. Both decisions, in my view, were in error, and I therefore concur in the Court's decision to vacate the judgment and remand the case. I also am in agreement with what I consider to be the holdings of the Court. I agree that, in some circumstances, the District Court need not interfere with a particular portion of the school system, even while, in my view, it must retain jurisdiction over the entire system until all vestiges of state-imposed segregation have been eliminated. See ante at 490-491. I also agree that whether the District Court must order DCSS to balance student assignments depends on whether the current imbalance is traceable to unlawful state policy and on whether such an order is necessary to fashion an effective remedy. See ante at 491, 493-49, 497-498. Finally, I agree that the good faith of the school board is relevant to these inquiries. See ante at 498-499. [503 U.S. 467, 510] I write separately for two purposes. First, I wish to be precise about my understanding of what it means for the District Court in this case to retain jurisdiction while relinquishing "supervision and control" over a subpart of a school system under a desegregation decree. Second, I write to elaborate on factors the District Court should consider in determining whether racial imbalance is traceable to board actions and to indicate where, in my view, it failed to apply these standards. I Beginning with Brown and continuing through the Court's most recent school desegregation decision in Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), this Court has recognized that, when the local government has been running de jure segregated schools, it is the operation of a racially segregated school system that must be remedied, not discriminatory policy in some discrete subpart of that system. Consequently, the Court in the past has required, and decides again today, that, even if the school system ceases to discriminate with respect to one of the Green-type factors, "the [district] court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed." Green v. School Bd. of New Kent County, 391 U.S. 430, 439 (1968) (emphasis added); Raney v. Board of Ed. of Gould School Dist., 391 U.S. 443, 449 (1968); see ante, at 491. That the District Court's jurisdiction should continue until the school board demonstrates full compliance with the Constitution follows from the reasonable skepticism that underlies judicial supervision in the first instance. This Court noted in Dowell: "A district court need not accept at face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future." 498 U.S., at 249 . It makes little sense, it seems to me, for the court to disarm itself by renouncing jurisdiction in one aspect of a school system while violations of the Equal Protection [503 U.S. 467, 511] Clause persist in other aspects of the same system. Cf. Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 207 (1973). It would seem especially misguided to place unqualified reliance on the school board's promises in this case, because the two areas of the school system the District Court found still in violation of the Constitution - expenditures and teacher assignments - are two of the Green factors over which DCSS exercises the greatest control. The obligations of a district court and a school district under its jurisdiction have been clearly articulated in the Court's many desegregation cases. Until the desegregation decree is dissolved under the standards set forth in Dowell, the school board continues to have "the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green, 391 U.S., at 437 -438. The duty remains enforceable by the district court without any new proof of a constitutional violation, and the school district has the burden of proving that its actions are eradicating the effects of the former de jure regime. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 537 (1979); Keyes, 413 U.S., at 208 -211; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S., 1, 26 (1971); Green, 391 U.S., at 439 . Contrary to the Court of Appeals' conclusion, however, retaining jurisdiction does not obligate the district court in all circumstances to maintain active supervision and control, continually ordering reassignment of students. The "duty" of the district court is to guarantee that the school district "`eliminate[s] the discriminatory effects of the past as well as to bar like discrimination in the future.'" Green, 391 U.S., at 438 , n. 4. This obligation requires the court to review school board actions to ensure that each one "will further, rather than delay, conversion to a unitary, nonracial nondiscriminatory school system." Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450, 459 (1968); see also Dayton Board of Education, 443 U.S., at 538 ; United States v. [503 U.S. 467, 512] Scotland Neck Board of Education, 407 U.S. 484, 489 (1972). But this obligation does not always require the district court to order new, affirmative action simply because of racial imbalance in student assignment. Whether a district court must maintain active supervision over student assignment, and order new remedial actions, depends on two factors. As the Court discusses, the district court must order changes in student assignment if it "is necessary or practicable to achieve compliance in other facets of the school system." Ante, at 497; see also ante at 507 (SOUTER, J., concurring). The district court also must order affirmative action in school attendance if the school district's conduct was a "contributing cause" of the racially identifiable schools. Columbus Board of Education v. Penick, 443 U.S. 449, 465 , n. 13 (1979); see also Keyes, 413 U.S., at 211 , and n. 17 (the school board must prove that its conduct "did not create or contribute to" the racial identifiability of schools or that racially identifiable schools are "in no way the result of" school board action). It is the application of this latter causation requirement that I now examine in more detail. II A DCSS claims that it need not remedy the segregation in DeKalb County schools because it was caused by demographic changes for which DCSS has no responsibility. It is not enough, however, for DCSS to establish that demographics exacerbated the problem; it must prove that its own policies did not contribute. 1 Such contribution can occur in at [503 U.S. 467, 513] least two ways: DCSS may have contributed to the demographic changes themselves, or it may have contributed directly to the racial imbalance in the schools. To determine DCSS' possible role in encouraging the residential segregation, the court must examine the situation with special care. "[A] connection between past segregative acts and present segregation may be present even when not apparent and . . . close examination is required before concluding that the connection does not exist." Keyes, 413 U.S., at 211 . Close examination is necessary, because what might seem to be purely private preferences in housing may, in fact, have been created, in part, by actions of the school district. "People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area, and have important impact on composition of inner-city neighborhoods." Swann, 402 U.S., at 20 -21. This interactive effect between schools and housing choices may occur because many families are concerned about the racial composition of a prospective school and will make residential decisions accordingly. 2 Thus, schools that are demonstrably black or white provide a signal to these families, perpetuating and intensifying the residential movement. See Keyes, 413 U.S., at 202 ; Columbus Board of Education, 443 U.S., at 465 , n. 13; ante, at 507-508 (SOUTER, J., concurring). School systems can identify a school as "black" or "white" in a variety of ways; choosing to enroll a racially identifiable [503 U.S. 467, 514] student population is only the most obvious. The Court has noted: "[T]he use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition." Keyes, 413 U.S., at 202 . Because of the various methods for identifying schools by race, even if a school district manages to desegregate student assignments at one point, its failure to remedy the constitutional violation in its entirety may result in resegregation, as neighborhoods respond to the racially identifiable schools. See ante, at 508-509 (SOUTER, J., concurring). Regardless of the particular way in which the school district has encouraged residential segregation, this Court's decisions require that the school district remedy the effect that such segregation has had on the school system. In addition to exploring the school district's influence on residential segregation, the District Court here should examine whether school-board actions might have contributed to school segregation. Actions taken by a school district can aggravate or eliminate school segregation independent of residential segregation. School-board policies concerning placement of new schools and closure of old schools and programs such as magnet classrooms and majority-to-minority (M-to-M) transfer policies affect the racial composition of the schools. See Swann, 402 U.S., at 20 -21, 26-27. A school district's failure to adopt policies that effectively desegregate its schools continues the violation of the Fourteenth Amendment. See Columbus Board of Education, 443 U.S., at 458 -459; Dayton Board of Education, 443 U.S., at 538 . The Court many times has noted that a school district is not responsible for all of society's ills, but it bears full responsibility for schools that have never been desegregated. See, e.g., Swann, supra. [503 U.S. 467, 515] B The District Court's opinion suggests that it did not examine DCSS' actions in light of the foregoing principles. The court did note that the migration farther into the suburbs was accelerated by "white flight" from black schools and the "blockbusting" of former white neighborhoods. It did not examine, however, whether DCSS might have encouraged that flight by assigning faculty and principals so as to identify some schools as intended respectively for black students or white students. See App. 226-231. Nor did the court consider how the placement of schools, the attendance zone boundaries, or the use of mobile classrooms might have affected residential movement. The court, in my view, failed to consider the many ways DCSS may have contributed to the demographic shifts. Nor did the District Court correctly analyze whether DCSS' past actions had contributed to the school segregation independent of residential segregation. The court did not require DCSS to bear the "heavy burden" of showing that student assignment policies - policies that continued the effects of the dual system - served important and legitimate ends. See Dayton Board of Education, 443 U.S., at 538 ; Swann, 402 U.S., at 26 . Indeed, the District Court said flatly that it would "not dwell on what might have been," but would inquire only as to "what else should be done now." App. 221. But this Court's decisions require the District Court to "dwell on what might have been." In particular, they require the court to examine the past to determine whether the current racial imbalance in the schools is attributable in part to the former de jure segregated regime or any later actions by school officials. As the Court describes, the District Court placed great emphasis on its conclusion that DCSS, in response to the court order, had desegregated student assignment in 1969. DCSS' very first action taken in response to the court decree, however, was to shape attendance zones to result [503 U.S. 467, 516] in two schools that were more than 50% black, despite a district-wide black student population of less than 6%. See ante, at 477-478. Within a year, another school became majority black, followed by four others within the next two years. App. 304, 314, 350, 351, 368. Despite the existence of these schools, the District Court found that DCSS effectively had desegregated for a short period of time with respect to student assignment. See ante at 9. The District Court justified this finding by linking the school segregation exclusively to residential segregation existing prior to the court order. See ibid. But residential segregation that existed prior to the desegregation decree cannot provide an excuse. It is not enough that DCSS adopt race-neutral policies in response to a court desegregation decree. Instead, DCSS is obligated to "counteract the continuing effects of past school segregation." Swann, 402 U.S., at 28 . Accordingly, the school district did not meet its affirmative duty simply by adopting a neighborhood-school plan, when already existing residential segregation inevitably perpetuated the dual system. See Davis v. Board of School Comm'rs of Mobile County, 402 U.S. 33, 37 (1971); Swann, 402 U.S., at 25 -28, 30. Virtually all the demographic changes that DCSS claims caused the school segregation occurred after 1975. See ante, at 475; App. 215, 260. Of particular relevance to the causation inquiry, then, are DCSS' actions prior to 1975; failures during that period to implement the 1969 decree render the school district's contentions that its noncompliance is due simply to demographic changes less plausible. A review of the record suggests that, from 1969 until 1975, DCSS failed to desegregate its schools. During that period, the number of students attending racially identifiable schools actually increased, and increased more quickly than the increase in black students. By 1975, 73% of black elementary students and 56% of black high school students were attending majority black schools, although the percentages of black [503 U.S. 467, 517] students in the district population were just 20% and 13%, respectively. Id., at 269-380. Of the 13 new elementary schools DCSS opened between 1969 and 1975, 6 had a total of four black students in 1975. Id., at 272, 299, 311, 316, 337, 353. One of the two high schools DCSS opened had no black students at all. 3 Id., at 367, 361. The only other measure taken by DCSS during the 1969-1975 period was to adopt the M-to-M transfer program in 1972. Due, however, to limitations imposed by school-district administrators - including a failure to provide transportation, "unnecessary red tape," and limits on available transfer schools - only one-tenth of 1% of the students were participating in the transfer program as of the 1975-1976 school year. Id, at 75, 80. In 1976, when the District Court reviewed DCSS' actions in the program, it concluded that DCSS' limitations on the program "perpetuate the vestiges of a dual system." Id., at 83. Noting that the Department of Health, Education, and Welfare had found that DCSS had ignored its responsibility affirmatively to eradicate segregation and perpetuate desegregation, the District Court found that attendance zone changes had perpetuated the dual system in the county. Id., at 89, 91. Thus, in 1976, before most of the demographic changes, the District Court found that DCSS had not complied with the 1969 order to eliminate the vestiges of its former de jure school system. Indeed, the 1976 order found that DCSS had contributed to the growing racial imbalance of its schools. Given these determinations in 1976, the District Court, at a minimum, should have required DCSS to prove that, but for the demographic changes between 1976 and 1985, its actions would have been sufficient to "convert promptly to a system without a `white' school and a `Negro' school, but just [503 U.S. 467, 518] schools." Green, 391 U.S., at 442 . The available evidence suggests that this would be a difficult burden for DCSS to meet. DCSS has undertaken only limited remedial actions since the 1976 court order. The number of students participating in the M-to-M program has expanded somewhat, composing about 6% of the current student population. The district also has adopted magnet programs, but they involve fewer than 1% of the system's students. Doubtless DCSS could have started and expanded its magnet and M-to-M programs more promptly; it could have built and closed schools with a view toward promoting integration of both schools and neighborhoods; redrawn attendance zones; integrated its faculty and administrators; and spent its funds equally. But it did not. DCSS must prove that the measures it actually implemented satisfy its obligation to eliminate the vestiges of de jure segregation originally discovered in 1969, and still found to exist in 1976. III The District Court apparently has concluded that DCSS should be relieved of the responsibility to desegregate because such responsibility would be burdensome. To be sure, changes in demographic patterns aggravated the vestiges of segregation and made it more difficult for DCSS to desegregate. But an integrated school system is no less desirable because it is difficult to achieve, and it is no less a constitutional imperative because that imperative has gone unmet for 38 years. Although respondents challenged the District Court's causation conclusions in the Court of Appeals, that court did not reach the issue. Accordingly, in addition to the issues the Court suggests be considered in further proceedings, I would remand for the Court of Appeals to review, under the foregoing principles, the District Court's finding that DCSS has met its burden of proving the racially identifiable schools are in no way the result of past segregative action. Footnotes [Footnote 1 The Court's cases make clear that there is a presumption in a former de jure segregated school district that the board's actions caused the racially identifiable schools, and it is the school board's obligation to rebut that presumption. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 537 (1979), Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 208 , 211 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26 (1971); ante, at 494-495. [Footnote 2 See Taeuber, Housing, Schools, and Incremental Segregative Effects, 441 Annals Am. Acad. Pol. Soc. Sci. 157 (1979); Orfield, School Segregation and Residential Segregation, in School Desegregation: Past, Present, and Future 227, 234-237 (W. Stephan & J. Feagins, ed. 1980); Elam, The 22nd Annual Gallup Poll of Public's Attitudes Toward the Public Schools, 72 Phi Delta Kappan 41, 4445 (1990). [Footnote 3 By 1986, one of those two high schools was 2.4% black. The other was 91.7% black. Of the elementary schools, 8 were either virtually all black or all white, and all were racially identifiable. App. 269-359. [503 U.S. 467, 519]

conservative

person

civil_rights

1964-071-01

United States Supreme Court BURNETT v. NEW YORK CENTRAL R. CO.(1965) No. 437 Argued: March 11, 1965Decided: April 5, 1965 Petitioner brought an action in an Ohio court with jurisdiction against respondent, who was properly served with process, under the Federal Employers' Liability Act (FELA) only a few days before the expiration of the three-year limitation period provided by the Act. Because under Ohio law venue was improper, the action was dismissed. Eight days later, and after the expiration of the three-year period, petitioner filed the FELA action in the federal court. The District Court dismissed the complaint as untimely and the Court of Appeals affirmed. Held: Where a timely FELA action is begun in a state court having jurisdiction, the defendant is served with process, and the case is dismissed for improper venue, the FELA time limitation is tolled during the pendency of the state suit and until the state court order dismissing the action becomes final. Pp. 426-436. 332 F.2d 529, reversed and remanded. Douglas G. Cole argued the cause for petitioner. With him on the brief was Otto F. Putnick. Roy W. Short argued the cause and filed a brief for respondent. MR. JUSTICE GOLDBERG delivered the opinion of the Court. On March 13, 1963, petitioner, a resident of Kentucky, began an action under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. 51 et seq. (1958 ed.), in the Common Pleas Court of Hamilton County, Ohio. He alleged that he had been injured on March 17, 1960, in Indiana, while in the course of his employment with respondent, the New York Central Railroad. The [380 U.S. 424, 425] Ohio court had jurisdiction of the action, and respondent was properly served with process. The action was dismissed upon respondent's motion, however, because venue was improper. While in Ohio in most transitory actions venue is proper wherever the defendant can be summoned, see Ohio Rev. Code 2307.36, 2307.38, 2307.39, venue is properly laid in actions against railroads to recover for personal injuries only in the county of the plaintiff's residence or the county where the injury occurred. 1 See Ohio Rev. Code 2307.37, Loftus v. Pennsylvania R. Co., 107 Ohio St. 352, 140 N. E. 94. On June 12, 1963, eight days after his state court action was dismissed, petitioner brought an identical action in the Federal District Court for the Southern District of Ohio. The District Court dismissed petitioner's complaint on the ground that although the state suit was brought within the limitations period, the federal action was not timely and was then barred by the limitation provision of the FELA, 35 Stat. 66, as amended, 45 U.S.C. 56 (1958 ed.), which provides: "That no action shall be maintained under this Act unless commenced within three years from the day the cause of action accrued." 230 F. Supp. 767. The Court of Appeals, rejecting petitioner's argument that his suit in the state court had tolled the FELA limitation provision, affirmed the District Court's dismissal of his suit. 332 F.2d 529. The Court of Appeals reasoned that since the limitation provision does not limit a common-law right, but, rather, is contained in the same Act which creates the right being limited, the limitation is "substantive" and not "procedural." For this reason, it held, "[f]ailure to bring the action within the time prescribed [380 U.S. 424, 426] extinguished the cause of action." 332 F.2d, at 530. We granted certiorari to determine whether petitioner's suit in the Ohio state court tolled the FELA statute of limitations. 379 U.S. 913 . There is no doubt that, as a matter of federal law, the state action here involved was properly "commenced" within the meaning of the federal limitation statute which provides that "no action shall be maintained . . . unless commenced within three years from the day the cause of action accrued." As this Court held in Herb v. Pitcairn, 325 U.S. 77, 79 , "when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute." Had Ohio law permitted this state court action simply to be transferred to another state court, Herb v. Pitcairn holds that it would have been timely. The problem here, however, is that the timely state court action was not transferable under Ohio law but, rather, was dismissed, and a new action was brought in a federal court more than three years after the cause of action accrued. Nonetheless, for the reasons set out below, we hold that the principles underlying the Court's decision in Herb v. Pitcairn lead to the conclusion that petitioner's state court action tolled the federal limitation provision and therefore petitioner's federal court action here was timely. The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one "of legislative intent whether the right shall be enforceable . . . after the prescribed time." Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 360 . Classification of such a provision as "substantive" rather than "procedural" does not determine whether or under what circumstances the limitation [380 U.S. 424, 427] period may be extended. 2 As this Court has expressly held, the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. Glus v. Brooklyn Eastern Terminal, 359 U.S. 231 . See Osbourne v. United States, 164 F.2d 767 (C. A. 2d Cir.); Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (C. A. 4th Cir.); Frabutt v. New York, C. & St. L. R. Co., 84 F. Supp. 460 (D.C. W. D. Pa.). These authorities indicate that the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances. In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act. Such an examination leads us to conclude that it effectuates the basic congressional purposes in enacting this humane and remedial Act, 3 as well as those policies [380 U.S. 424, 428] embodied in the Act's limitation provision, to hold that when a plaintiff begins a timely FELA action in a state court of competent jurisdiction, service of process is made upon the opposing party, and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action. Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348 -349. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights. 4 This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff's rights. Thus, this Court has held that an FELA action is not barred, though brought more than three years after the cause of action accrued, where a defendant misled the plaintiff into believing that he had more than three years in which to bring the action. Glus v. Brooklyn Eastern Terminal, supra. Moreover, it has been held that the [380 U.S. 424, 429] FELA limitation provision is tolled when war has prevented a plaintiff from bringing his suit, even though a defendant in such a case might not know of the plaintiff's disability and might believe that the statute of limitations renders him immune from suit. See Osbourne v. United States, supra; Frabutt v. New York, C. & St. L. R. Co., supra. In such cases a plaintiff has not slept on his rights but, rather, has been prevented from asserting them. Considerations in favor of tolling the federal statute of limitations in this case are similar to those leading to an extension of the limitation period in the cases mentioned above. Petitioner here did not sleep on his rights but brought an action within the statutory period in a state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action. While venue was improper in the state court, under Ohio law venue objections may be waived by the defendant, 5 and evidently in past cases defendant railroads, including this respondent, had waived objections to venue so that suits by nonresidents of Ohio could proceed in state courts. 6 Petitioner, then, failed to file an FELA action in the federal courts, not because he was disinterested, but solely because he felt that his state action was sufficient. Respondent [380 U.S. 424, 430] could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy; in fact, respondent appeared specially in the Ohio court to file a motion for dismissal on grounds of improper venue. Both federal and state jurisdictions have recognized the unfairness of barring a plaintiff's action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run. In both federal and state systems of justice rules have been devised to prevent this from happening. Thus a federal statute, 28 U.S.C. 1406 (a), allows a district court "of a district in which is filed a case laying venue in the wrong division or district . . . if it be in the interest of justice," to "transfer such case to any district or division in which it could have been brought." 7 Congress thereby recognized that the filing of a lawsuit "itself shows the proper diligence on the part of the plaintiff which . . . statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made . . . `the interest of justice' may require that the complaint . . . be transferred in order that the plaintiff not be penalized by . . . `time-consuming and justice-defeating technicalities.'" Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 . If petitioner in this case had instituted his suit in a federal court where venue was improper, his case could simply have been transferred under 1406 (a) to a court with proper venue; the statute of limitations would not have barred his action. [380 U.S. 424, 431] The States have developed two methods for preserving causes of action which would otherwise be barred by the passing of a limitation period after a plaintiff has brought his action in a court with improper venue. The first method is analogous to the congressional statute, 28 U.S.C. 1406 (a), and permits transfer within the State from a court with improper venue to one where venue is proper. 8 This Court has held that when a timely FELA action is brought in a state court without proper venue and service of process issues, the statute of limitations cannot bar the action when it is later transferred to a proper state court after the limitation period has run. Herb v. Pitcairn, supra. Thus, if venue for petitioner's action were proper in some other county in Ohio, and if Ohio chose to preserve improper venue actions by means of a "transfer" statute, petitioner's action would not have been barred by the statute of limitations. The second method used by many States to preserve actions brought in a court where venue is improper is a "saving" statute. 9 [380 U.S. 424, 432] Such a statute specifically gives to a plaintiff whose timely action is dismissed for procedural reasons such as improper venue a specified time in which to bring a second action. Ohio has such a statute, Ohio Rev. Code 2305.19, and, had petitioner's action been one arising under Ohio law, he would have had an additional year in which to file his action in a proper court. State causes of action brought in a court where venue is improper are preserved by one or the other of these two methods in 44 States. 10 These factors point to the conclusion that Congress did not intend the statute of limitations to bar a plaintiff who brings a timely FELA action in a state court of competent jurisdiction, who serves the defendant with process, and whose action is later dismissed for improper venue. This does not mean that we can accept petitioner's argument that the federal limitation provision [380 U.S. 424, 433] incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States. The scope of such statutes and the length of additional time they allow vary considerably from State to State. 11 Moreover, not all States have saving statutes. 12 This Court has long recognized that the FELA "has a uniform operation, and neither is nor can be deflected therefrom by local statutes." Panama R. Co. v. Johnson, 264 U.S. 375, 392 ; Second Employers' Liability Cases, 223 U.S. 1, 51 , 55. This Court has also specifically held that "[t]he period of time within which an action may be commenced is a material element in . . . [a] uniformity of operation" which Congress would not wish "to be destroyed by the varying provisions of the state statutes of limitation." Engel v. Davenport, 271 U.S. 33, 39 . The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity. On the other hand, to accept respondent's argument that the limitation provision is not tolled under the circumstances present here would do even greater violence to the policies underlying the limitation provision and the Act. It would produce a substantial nonuniformity by creating a procedural anomaly. A plaintiff who brings a timely FELA action in a federal court where venue is improper would not be barred by the subsequent running of the limitation period, 28 U.S.C. 1406 (a), nor would a plaintiff who brings a timely FELA action in a state [380 U.S. 424, 434] court where venue is improper be barred by the subsequent running of the limitation period provided that the State has a "transfer" statute and venue is proper elsewhere in the State. Herb v. Pitcairn, supra. However, a similar plaintiff in a state court would be barred from further actions by the running of the limitation period if the State relies upon a "saving" statute, rather than a "transfer" statute to preserve similar state actions. 13 Thus, in effect, a nonuniform limitation provision would be produced. Yet, as we have pointed out, a major reason for having a federal limitation provision was to achieve national uniformity. Engel v. Davenport, supra. Moreover, to accept respondent's position could only discourage FELA actions in the courts of certain States. Yet Congress, in providing for concurrent state and federal court jurisdiction and prohibiting removal of FELA cases to federal courts, has sought to protect the plaintiff's right to bring an FELA action in a state court. See Great Northern R. Co. v. Alexander, 246 U.S. 276 . Cf. Gibson, The Venue Clause and Transportation of Lawsuits, 18 Law & Contemp. Prob. 367 (1953). Further, as we have pointed out, both Congress and the States have made clear, through various procedural statutes, their desire to prevent timely actions brought in courts with improper venue from being time-barred merely because the limitation period expired while the action was in the improper court. Finally, the humanitarian purpose of the FELA makes clear that Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so. These considerations thus lead us to conclude that when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process [380 U.S. 424, 435] and plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. We believe that the interests of uniformity embodied in the Act are best served by holding that this rule, tolling the statute, applies in all States regardless of whether or not a State has a "saving" statute. We further hold, under familiar principles which have been applied to statutes of limitations, that the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal. 14 While this rule produces a minor nonuniformity since the time allowed for taking an appeal is not the same in all States, to adopt state "saving" statutes would be far less uniform. The period "saved" under such statutes varies widely among the States, and some States do not have "saving" statutes. Similarly, to toll the federal statute for a "reasonable time" after the state court orders the plaintiff's action dismissed would create uncertainty as to exactly when the limitation period again begins to run. This uncertainty would be compounded by applying the equitable doctrine of "laches" to the federal lawsuit brought after the dismissal of the state court action. Whether laches bars an action in a given case depends upon the circumstances of that case and "is a question primarily addressed to the discretion of the trial court." Gardner v. Panama R. Co., 342 U.S. 29, 30 . To apply it here would be at variance with the policies of certainty and uniformity underlying this statute of limitations. We conclude that a uniform rule tolling the federal statute for the period of the pendency of the state [380 U.S. 424, 436] court action and until the state court dismissal order becomes final is fair to both plaintiff and defendant, carries out the purposes of the FELA, and best serves the policies of uniformity and certainty underlying the federal limitation provision. Applying these principles to the present case, since petitioner brought a timely suit in the Ohio court, served defendant with process, and, after finding the state action dismissed for improper venue, filed his suit in the Federal District Court only eight days after the Ohio court dismissed his action, before his time for appealing from the Ohio order had expired, his federal court action was timely. The Court of Appeals decision affirming the District Court's dismissal of petitioner's action is therefore reversed, and this case is remanded for proceedings consistent with this opinion. Reversed and remanded. Footnotes [Footnote 1 Counsel for petitioner stated at oral argument that the constitutionality of this special venue provision for actions against railroads was being challenged in other litigation. No constitutional issue was raised in these proceedings, and we express no views upon any such question. [Footnote 2 The distinction between substantive and procedural statutes of limitations appears to have arisen in cases involving conflicts of laws, see The Harrisburg, 119 U.S. 199 ; Davis v. Mills, 194 U.S. 451 ; Restatement of the Law, Conflict of Laws 605. While the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled. Thus the "substantive"-"procedural" distinction would seem to be of little help in deciding questions of extending the limitation period. See Glus v. Brooklyn Eastern Terminal, 359 U.S. 231 ; Developments in the Law - Statutes of Limitations, 63 Harv. L. Rev. 1177, 1186-1188 (1950); Note, 72 Yale L. J. 600, 604-605 (1963). [Footnote 3 See, e. g., Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507 . See also Griffith, The Vindication of a National Public Policy under the Federal Employers' Liability Act, 18 Law & Contemp. Prob. 160 (1953). [Footnote 4 See The Act of Limitation with a Proviso, 32 Hen. 8, c. 2 (1540): "Forasmuch as the Time of Limitation appointed for suing . . . extend, and be of so far and long Time past, that it is above the Remembrance of any living Man, truly to try and know the perfect Certainty of such Things, as hath or shall come in Trial . . . to the great Danger of Mens Consciences that have or shall be impanelled in any Jury for the Trial of the same . . . ." [Footnote 5 Skelly v. Jefferson State Bank, 9 Ohio St. 606; Ohio Southern R. Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269. [Footnote 6 Because of the provisions of Ohio Rev. Code 2307.37, venue in a suit for injuries to person or property against a railroad is proper only in the county where the cause of action arose or where the plaintiff resides. Thus venue in an action by a resident of a foreign state against a railroad arising out of an accident outside the State is not proper anywhere within Ohio. Railroads can agree to venue in an Ohio state court in such a case, however, and evidently they have so agreed, as we were told on oral argument, for cases can be found which involve accidents occurring, and plaintiffs who reside, outside the county where suit was brought. See, e. g., Woodworth v. New York Central R. Co., 149 Ohio St. 543, 80 N. E. 2d 142. [Footnote 7 Numerous cases hold that when dismissal of an action for improper venue would terminate rights without a hearing on the merits because plaintiff's action would be barred by a statute of limitations, "the interest of justice" requires that the cause be transferred. See, e. g., Gold v. Griffith, 190 F. Supp. 482 (D.C. N. D. Ind.); Dennis v. Galvanek, 171 F. Supp. 115 (D.C. M. D. Pa.); Schultz v. McAfee, 160 F. Supp. 210 (D.C. D. Me.). [Footnote 8 Thirty-one States have transfer-of-venue statutes which appear to be relevant: Alaska Stat. 22.10.040; Ariz. Rev. Stat. 1956, 12-404; Deering's Cal. Code Civ. Proc. Ann. 1959, 396; Colo. Rules Civ. Proc., Rule 98 (f); Conn. Gen. Stat. 1958, 52-32; Fla. Stat. 1963, 53.17; Idaho Code 1947, 5-406; Smith-Hurd's Ill. Ann. Stat. 1956, c. 110, 10; Burns' Ind. Ann. Stat. 1933, 2-1401; Kan. Code Civ. Proc. Ann. 1963, 60-611; Mass. Gen. Laws Ann. 1959, c. 223, 15; Mich. Stat. Ann. 1962, 27A. 1651; Minn. Stat. Ann. 1947, 542.10; Miss. Code 1942, 1441; Mont. Rev. Codes 1947, 93-2906; Nev. Rev. Stat. 13.050; N. H. Rev. Stat. Ann. 1955, 507:11; N. J. Court Rules Rev. 1:27 D; McKinney's N. Y. Civ. Prac. Law & Rules 1963, 510; N.C. Gen. Stat. 1-25; N. D. Century Code 1960, 28-04-07; Ore. Rev. Stat. 14.110; S. C. Code 1962, 10-310; S. D. Code 33.0306; Vernon's Tex. Rules Civ. Proc., Rule 257; Utah Code Ann. 1953, 78-13-8; Va. Code 1950, 8-157; Wash. Rev. Code 4.12.030; W. Va. Code 1961, 5699; Wis. Stat. 1963, 261.03; Wyo. Stat. 1957, Civ. Proc. Code 1-53. [Footnote 9 Thirty-one States have "saving" statutes which appear to be relevant: Alaska Stat. 09.10.240 (one year); Ark. Stat. 1947, [380 U.S. 424, 432] 37-222 (one year); Conn. Gen. Stat. 1958, 52-592 (one year); Del. Code Ann. 1953, Tit. 10, 8117 (one year); Ga. Code Ann. 3-808 (six months); Smith-Hurd's Ill. Ann. Stat. 1956, c. 83, 24a (one year); Burns' Ind. Ann. Stat. 1933, 2-608 (five years); Iowa Code Ann. 1950, 614.10 (six months); Kan. Code. Civ. Proc. Ann. 1963, 60-518 (six months); Ky. Rev. Stat. 413.270 (90 days); Slovenko's La. Civ. Code 1961, Art. 3555, R. S. 9:5801 (complete tolling); Me. Rev. Stat. 1954, c. 112, 99 (six months); Mass. Gen. Laws Ann. 1959, c. 260, 32 (one year); Mich. Stat. Ann. 1962, 27A.5856 (90 days); Miss. Code 1942, 744 (one year); Mont. Rev. Codes 1947, 93-2708 (one year); N. H. Rev. Stat. Ann. 1955, 508:10 (one year); N. M. Stat. 1953, 23-1-14 (six months); McKinney's N. Y. Civ. Prac. Law & Rules 1963, 205 (six months); N.C. Gen. Stat. 1-25 (one year); Ohio Rev. Code 1954, 2305.19 (one year); Okla. Stat. Ann., Tit. 12, 100 (one year); Ore. Rev. Stat. 12.220 (one year); R. I. Gen. Laws 9-1-22 (one year); Tenn. Code Ann. 1955, 28-106 (one year); Vernon's Tex. Civ. Stat. Ann., Tit. 91, Art. 5539a (60 days); Utah Code Ann. 1953, 78-12-40 (one year); Vt. Stat. Ann. 1958, Tit. 12, 558 (one year); Va. Code 1950, 8-34 (one year); W. Va. Code 1961, 5410 (one year); Wyo. Stat. 1957, 1-26 (one year). [Footnote 10 See notes 8, 9, supra, note 12, infra. [Footnote 11 An additional year is allowed in 20 States, six months in six States, 90 days in two States, 60 days in one State, five years in one State, and one State imposes no definite limitation upon the additional time allowed. See note 9, supra. [Footnote 12 Nineteen States appear to have no applicable saving statute. Alabama, Hawaii, Maryland, Missouri, Nebraska, and Pennsylvania appear to have neither a saving nor a transfer statute. [Footnote 13 This would be true in the 19 States which lack transfer statutes. Of those 19, 13 have saving statutes and six do not. See notes 8, 9, and 11, supra. [Footnote 14 Cf. Clayton Act, as amended, 5 (b), 69 Stat. 283, 15 U.S.C. 16 (b) (1958 ed.); Electric Theater Co. v. Twentieth Century-Fox Film Corp., 113 F. Supp. 937, 944 (D.C. W. D. Mo.); Subversive Activities Control Act of 1950, 14, 64 Stat. 1001, 50 U.S.C. 793 (b) (1958 ed.): MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring. The federal question presented is whether this action, timely started in the state court but not timely started if the filing date in the federal court governs, was "commenced within three years from the day the cause of action accrued" within the meaning of 45 U.S.C. 56. I think it was so "commenced," as much as was the action in Herb v. Pitcairn, 325 U.S. 77 . In reaching this conclusion I do not find it necessary to rely on the fact that petitioner filed in the federal court "before his time for appealing from the Ohio order had expired," ante, this page. Instead I rest simply on the ground that "when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute." 325 U.S., at 79 . [380 U.S. 424, 437] (Emphasis supplied.) And see Herb v. Pitcairn, 324 U.S. 117, 132 -133 (dissenting opinion of BLACK, J.), setting forth the requirements for commencing an FELA action within the meaning of 45 U.S.C. 56: (1) a bona fide effort to prosecute the claim, (2) in a court having jurisdiction, (3) resulting in notice to the defendant. If after dismissal the plaintiff delays inexcusably in refiling his suit in the proper court and the defendant is prejudiced by the delay, the action will of course be barred by laches. Gardner v. Panama R. Co., 342 U.S. 29, 30 -31. That familiar equitable doctrine provides the defendant with adequate protection against delay. The Court rejects this established doctrine, however, creating a new statute of limitations of its own which makes the timeliness of a federal cause of action depend on state time requirements which were adopted for other, unrelated purposes and which vary from State to State. The long-established federal rule of laches, in contrast, is uncomplicated, uniform, and directly responsive to the problem. Laches, of course, has no application in the instant case, as petitioner filed in the federal court only eight days after his state court action had been dismissed. [380 U.S. 424, 438]

liberal

facility

economic_activity

1981-026-01

United States Supreme Court VALLEY FORGE COLLEGE v. AMERICANS UNITED(1982) No. 80-327 Argued: November 4, 1981Decided: January 12, 1982 Pursuant to its authority under the Property Clause, Congress enacted the Federal Property and Administrative Services Act of 1949 to provide an economical and efficient system for the disposal of surplus Federal Government property. Under the statute, property that has outlived its usefulness to the Government is declared "surplus" and may be transferred to private or other public entities. The Act authorizes the Secretary of Health, Education, and Welfare (HEW) (now the Secretary of Education) to assume responsibility for disposing of surplus real property for educational use, and he may sell such property to nonprofit, tax-exempt educational institutions for consideration that takes into account any benefit which has accrued or may accrue to the United States from the transferee's use of the property. Property formerly used as a military hospital was declared to be "surplus property" under the Act and was conveyed by the Department of HEW to petitioner church-related college. The appraised value of the property, $577,500, was discounted by the Secretary of HEW's computation of a 100% public benefit allowance, thus permitting petitioner to acquire the property without making any financial payment. Respondents, an organization dedicated to the separation of church and State and several of its employees, brought suit in Federal District Court, challenging the conveyance on the ground that it violated the Establishment Clause of the First Amendment, and alleging that each member of respondent organization "would be deprived of the fair and constitutional use of his (her) tax dollars." The District Court dismissed the complaint on the ground that respondents lacked standing to sue as taxpayers under Flast v. Cohen, 392 U.S. 83 , and failed to allege any actual injury beyond a generalized grievance common to all taxpayers. The Court of Appeals reversed, holding that although respondents lacked standing as taxpayers to challenge the conveyance, they had standing merely as "citizens," claiming "`injury in fact' to their shared individuated right to a government that `shall make no law respecting the establishment of religion,'" which standing was sufficient to satisfy the "case or controversy" requirement of Art. III. [454 U.S. 464, 465] Held: Respondents do not have standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance in question. Pp. 471-490. (a) The exercise of judicial power under Art. III is restricted to litigants who can show "injury in fact" resulting from the action that they seek to have the court adjudicate. Pp. 471-476. (b) Respondents are without standing to sue as taxpayers, because the source of their complaint is not a congressional action but a decision by HEW to transfer a parcel of federal property and because the conveyance in question was not an exercise of Congress' authority conferred by the Taxing and Spending Clause but by the Property Clause. Cf. Flast v. Cohen, supra. Pp. 476-482. (c) Nor have respondents sufficiently alleged any other basis for standing to bring suit. Although they claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not injury sufficient to confer standing under Art. III. While respondents are firmly committed to the constitutional principle of separation of church and State, standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. Pp. 482-487. (d) Enforcement of the Establishment Clause does not justify special exceptions from the standing requirements of Art. III. There is no place in our constitutional scheme for the philosophy that the business of the federal courts is correcting constitutional errors and that "cases and controversies" are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. And such philosophy does not become more palatable when the underlying merits concern the Establishment Clause. Pp. 488-490. 619 F.2d 252, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 490. STEVENS, J., filed a dissenting opinion, post, p. 513. C. Clark Hodgson, Jr., argued the cause and filed a brief for petitioner. Solicitor General Lee argued the cause for the federal parties as respondents under this Court's Rule 19.6 in support of [454 U.S. 464, 466] petitioner. With him on the briefs were former Solicitor General McCree, Deputy Solicitor General Geller, Deputy Solicitor General Shapiro, Leonard Schaitman, and Bruce Bagni. Lee Boothby argued the cause for respondents. With him on the brief was Robert W. Nixon. * [Footnote * Briefs of amici curiae urging affirmance were filed by Nathan Z. Dershowitz and Marc D. Stern for the American Jewish Congress et al.; and by Leo Pfeffer for the National Coalition for Public Education and Religious Liberty et al. JUSTICE REHNQUIST delivered the opinion of the Court. I Article IV, 3, cl. 2, of the Constitution vests Congress with the "Power to dispose of and make all needful Rules and Regulations respecting the . . . Property belonging to the United States." Shortly after the termination of hostilities in the Second World War, Congress enacted the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, 40 U.S.C. 471 et seq. (1976 ed. and Supp. III). The Act was designed, in part, to provide "an economical and efficient system for . . . the disposal of surplus property." 63 Stat. 378, 40 U.S.C. 471. In furtherance of this policy, federal agencies are directed to maintain adequate inventories of the property under their control and to identify excess property for transfer to other agencies able to use it. See 63 Stat. 384, 40 U.S.C. 483(b), (c). 1 Property that has outlived its usefulness to the Federal Government is declared "surplus" 2 and may be transferred to private [454 U.S. 464, 467] or other public entities. See generally 63 Stat. 385, as amended, 40 U.S.C. 484. The Act authorizes the Secretary of Health, Education, and Welfare (now the Secretary of Education 3 ) to assume responsibility for disposing of surplus real property "for school, classroom, or other educational use." 63 Stat. 387, as amended, 40 U.S.C. 484(k)(1). Subject to the disapproval of the Administrator of General Services, the Secretary may sell or lease the property to nonprofit, tax-exempt educational institutions for consideration that takes into account "any benefit which has accrued or may accrue to the United States" from the transferee's use of the property. 63 Stat. 387, 40 U.S.C. 484(k)(1)(A), (C). 4 By regulation, the Secretary has provided for the computation of a "public benefit allowance," which discounts the transfer price of the property "on the basis of benefits to the United States from the use of such property for educational purposes." 34 CFR 12.9(a) (1980). 5 The property which spawned this litigation was acquired by the Department of the Army in 1942, as part of a larger tract of approximately 181 acres of land northwest of Philadelphia. The Army built on that land the Valley Forge General Hospital, and for 30 years thereafter, that hospital provided medical care for members of the Armed Forces. In April 1973, as part of a plan to reduce the number of military [454 U.S. 464, 468] installations in the United States, the Secretary of Defense proposed to close the hospital, and the General Services Administration declared it to be "surplus property." The Department of Health, Education, and Welfare (HEW) eventually assumed responsibility for disposing of portions of the property, and in August 1976, it conveyed a 77-acre tract to petitioner, the Valley Forge Christian College. 6 The appraised value of the property at the time of conveyance was $577,500. 7 This appraised value was discounted, however, by the Secretary's computation of a 100% public benefit allowance, which permitted petitioner to acquire the property without making any financial payment for it. The deed from HEW conveyed the land in fee simple with certain conditions subsequent, which required petitioner to use the property for 30 years solely for the educational purposes described in petitioner's application. In that description, petitioner stated its intention to conduct "a program of education . . . meeting the accrediting standards of the State of Pennsylvania, The American Association of Bible Colleges, the Division of Education of the General Council of the Assemblies of God and the Veterans Administration." Petitioner is a nonprofit educational institution operating under the supervision of a religious order known as the Assemblies of God. By its own description, petitioner's purpose is "to offer systematic training on the collegiate level to men and women for Christian service as either ministers or laymen." App. 34. Its degree programs reflect this orientation by providing courses of study "to train leaders for church related ministries." Id., at 102. Faculty members [454 U.S. 464, 469] must "have been baptized in the Holy Spirit and be living consistent Christian lives," id., at 37, and all members of the college administration must be affiliated with the Assemblies of God, id., at 36. In its application for the 77-acre tract, petitioner represented that, if it obtained the property, it would make "additions to its offerings in the arts and humanities," and would strengthen its "psychology" and "counselling" courses to provide services in inner-city areas. In September 1976, respondents Americans United for Separation of Church and State, Inc. (Americans United), and four of its employees, learned of the conveyance through a news release. Two months later, they brought suit in the United States District Court for the District of Columbia, later transferred to the Eastern District of Pennsylvania, to challenge the conveyance on the ground that it violated the Establishment Clause of the First Amendment. 8 See id., at 10. In its amended complaint, Americans United described itself as a nonprofit organization composed of 90,000 "tax-payer members." The complaint asserted that each member "would be deprived of the fair and constitutional use of his (her) tax dollar for constitutional purposes in violation of his (her) rights under the First Amendment of the United States Constitution." Ibid. Respondents sought a declaration that the conveyance was null and void, and an order compelling petitioner to transfer the property back to the United States. Id., at 12. On petitioner's motion, the District Court granted summary judgment and dismissed the complaint. App. to Pet. for Cert. A42. The court found that respondents lacked standing to sue as taxpayers under Flast v. Cohen, 392 U.S. 83 (1968), and had "failed to allege that they have suffered any actual or concrete injury beyond a generalized grievance common to all taxpayers." App. to Pet. for Cert. A43. [454 U.S. 464, 470] Respondents appealed to the Court of Appeals for the Third Circuit, which reversed the judgment of the District Court by a divided vote. Americans United v. U.S. Dept. of HEW, 619 f. 2d 252 (1980). All members of the court agreed that respondents lacked standing as taxpayers to challenge the conveyance under Flast v. Cohen, supra, since that case extended standing to taxpayers qua taxpayers only to challenge congressional exercises of the power to tax and spend conferred by Art. I, 8, of the Constitution, and this conveyance was authorized by legislation enacted under the authority of the Property Clause, Art. IV, 3, cl. 2. Notwithstanding this significant factual difference from Flast, the majority of the Court of Appeals found that respondents had standing merely as "citizens," claiming "`injury in fact' to their shared individuated right to a government that `shall make no law respecting the establishment of religion.'" 619 F.2d, at 261. In the majority's view, this "citizen standing" was sufficient to satisfy the "case or controversy" requirement of Art. III. One judge, perhaps sensing the doctrinal difficulties with the majority's extension of standing, wrote separately, expressing his view that standing was necessary to satisfy "the need for an available plaintiff," without whom "the Establishment Clause would be rendered virtually unenforceable" by the judiciary. Id., at 267, 268. The dissenting judge expressed the view that respondents' allegations constituted a "generalized grievance . . . too abstract to satisfy the injury in fact component of standing." Id., at 269. He therefore concluded that their standing to contest the transfer was barred by this Court's decisions in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), and United States v. Richardson, 418 U.S. 166 (1974). 619 F.2d, at 270-271. Because of the unusually broad and novel view of standing to litigate a substantive question in the federal courts adopted by the Court of Appeals, we granted certiorari, 450 U.S. 909 (1981), and we now reverse. [454 U.S. 464, 471] II Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substances, without reference to the necessity "to adjudge the legal rights of litigants in actual controversies." Liverpool S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process. The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy." Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892). Otherwise, the power "is not judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States." United States v. Ferreira, 13 How. 40 48 (1852). As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have "standing" to challenge the action sought to be adjudicated in the lawsuit. The term "standing" subsumes a blend of constitutional requirements and prudential considerations, see Warth v. Seldin, 422 U.S. 490, 498 (1975), and it has not always been clear in the opinions of this Court whether particular features of the "standing" requirement have been required by Art. III ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution. See Flast v. Cohen, supra, at 97. [454 U.S. 464, 472] A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 , 41 (1976). 9 In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S., at 97 . The requirement of "actual injury redressable by the court," Simon, supra, at 39, serves several of the "implicit policies embodied in Article III," Flast, supra, at 96. It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. The "standing" requirement serves other purposes. Because it assures an actual factual setting in which the litigant asserts a claim of injury in fact, a court may decide the case with some confidence that its decision will not pave the way for lawsuits which have some, but not all, of the facts of the case actually decided by the court. [454 U.S. 464, 473] The Art. III aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order. The federal courts have abjured appeals to their authority which would convert the judicial process into "no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U.S. 669, 687 (1973). Were the federal courts merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding, the concept of "standing" would be quite unnecessary. But the "cases and controversies" language of Art. III forecloses the conversion of courts of the United States into judicial version of college debating forums. As we said in Sierra Club v. Morton, 405 U.S. 727, 740 (1972): "The requirement that a party seeking review must allege facts showing that he is himself adversely affected . . . does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome." The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is therefore restricted to litigants who can show "injury in fact" resulting from the action which they seek to have the court adjudicate. The exercise of the judicial power also affects relationships between the coequal arms of the National Government. The effect is, of course, most vivid when a federal court declares unconstitutional an act of the Legislative or Executive Branch. While the exercise of that "ultimate and supreme function," Chicago & Grand Trunk R. Co. v. Wellman, supra, at 345, is a formidable means of vindicating individual rights, when employed unwisely or unnecessarily it is also the ultimate threat to the continued effectiveness of the federal courts in performing that role. While the propriety of such action by a federal court has been recognized since [454 U.S. 464, 474] Marbury v. Madison, 1 Cranch 137 (1803), it has been recognized as a tool of last resort on the part of the federal judiciary throughout its nearly 200 years of existence: "[R]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches." United States v. Richardson, 418 U.S., at 188 (POWELL, J., concurring). Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury. Thus, this Court has "refrain[ed] from passing upon the constitutionality of an act [of the representative branches] unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Blair v. United States, 250 U.S. 273, 279 (1919). The importance of this precondition should not be underestimated as a means of "defin[ing] the role assigned to the judiciary in a tripartite allocation of power." Flast v. Cohen, supra, at 95. Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S., at 499 . 10 In addition, even when the plaintiff has alleged [454 U.S. 464, 475] redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating "abstract questions of wide public significance" which amount to "generalized grievances," pervasively shared and most appropriately addressed in the representative branches. Id., at 499-500. 11 Finally, the Court has required that the plaintiff's complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970). 12 Merely to articulate these principles is to demonstrate their close relationship to the policies reflected in the Art. III requirement of actual or threatened injury amenable to judicial remedy. But neither the counsels of prudence nor the policies implicit in the "case or controversy" requirement should be mistaken for the rigorous Art. III requirements themselves. Satisfaction of the former cannot substitute for a demonstration of "`distinct and palpable injury' . . . that is likely to be redressed if the requested relief is granted." Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100 (quoting Warth v. Seldin, supra, at 501). That requirement states a limitation on judicial power, not merely a factor to be balanced in the weighing of so-called "prudential" considerations. We need not mince words when we say that the concept of "Art. III standing" has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition. But of one thing we may be sure: Those who do not possess Art. III standing may [454 U.S. 464, 476] not litigate as suitors in the courts of the United States. 13 Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the "merits" of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, a charter which created a general government, provided for the interaction between that government and the governments of the several States, and was later amended so as to either enhance or limit its authority with respect to both States and individuals. III The injury alleged by respondents in their amended complaint is the "depriv[ation] of the fair and constitutional use of [their] tax dollar." App. 10. 14 As a result, our discussion [454 U.S. 464, 477] must begin with Frothingham v. Mellon, 262 U.S. 447 (1923) (decided with Massachusetts v. Mellon). In that action a taxpayer brought suit challenging the constitutionality of the Maternity Act of 1921, which provided federal funding to the States for the purpose of improving maternal and infant health. The injury she alleged consisted of the burden of taxation in support of an unconstitutional regime, which she characterized as a deprivation of property without due process. "Looking through forms of words to the substance of [the] complaint," the Court concluded that the only "injury" was the fact "that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional." Id., at 488. Any tangible effect of the challenged statute on the plaintiff's tax burden was "remote, fluctuating and uncertain." Id., at 487. In rejecting this as a cognizable injury sufficient to establish standing, the Court admonished: "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. . . . Here the parties plaintiff have no such case." Id., at 488. Following the decision in Frothingham, the Court confirmed that the expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing, even though the plaintiff contributes to the public coffers as a taxpayer. In Doremus v. Board of Education, 342 U.S. 429 (1952), plaintiffs brought suit as citizens and taxpayers, claiming that a New Jersey law which authorized public school teachers in the classroom to read passages from [454 U.S. 464, 478] the Bible violated the Establishment Clause of the First Amendment. The Court dismissed the appeal for lack of standing: "This Court has held that the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure. . . . Without disparaging the availability of the remedy by taxpayer's action to restrain unconstitutional acts which result in direct pecuniary injury, we reiterate what the Court said of a federal statute as equally true when a state Act is assailed: `The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.'" Id., at 433-434 (quoting Frothingham v. Mellon, supra, at 488) (citations omitted). In short, the Court found that plaintiffs' grievance was "not a direct dollars-and-cents injury but is a religious difference." 342 U.S., at 434 . A case or controversy did not exist, even though the "clash of interests [was] real and . . . strong." Id., at 436 (Douglas, J., dissenting). The Court again visited the problem of taxpayer standing in Flast v. Cohen, 392 U.S. 83 (1968). The taxpayer plaintiffs in Flast sought to enjoin the expenditure of federal funds under the Elementary and Secondary Education Act of 1965, which they alleged were being used to support religious schools in violation of the Establishment Clause. The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution." [454 U.S. 464, 479] Id., at 102. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." Id., at 102-103. The plaintiffs in Flast satisfied this test because "[t]heir constitutional challenge [was] made to an exercise by Congress of its power under Art. I, 8, to spend for the general welfare," id., at 103, and because the Establishment Clause, on which plaintiffs' complaint rested, "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, 8," id., at 104. The Court distinguished Frothingham v. Mellon, supra, on the ground that Mrs. Frothingham had relied, not on a specific limitation on the power to tax and spend, but on a more general claim based on the Due Process Clause. 392 U.S., at 105 . Thus, the Court reaffirmed that the "case or controversy" aspect of standing is unsatisfied "where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Id., at 106. Unlike the plaintiffs in Flast, respondents fail the first prong of the test for taxpayer standing. Their claim is deficient in two respects. First, the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property. 15 Flast limited taxpayer standing to challenges directed "only [at] exercises of congressional power." Id., at 102. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 228 (denying standing because the taxpayer plaintiffs "did not challenge an enactment under Art. I, 8, but rather the action of the Executive Branch"). [454 U.S. 464, 480] Second, and perhaps redundantly, the property transfer about which respondents complain was not an exercise of authority conferred by the Taxing and Spending Clause of Art. I, 8. The authorizing legislation, the Federal Property and Administrative Services Act of 1949, was an evident exercise of Congress' power under the Property Clause, Art. IV, 3, cl. 2. 16 Respondents do not dispute this conclusion, see Brief for Respondents Americans United et al. 10, and it is decisive of any claim of taxpayer standing under the Flast precedent. 17 [454 U.S. 464, 481] Any doubt that once might have existed concerning the rigor with which the Flast exception to the Frothingham principle ought to be applied should have been erased by this Court's recent decisions in United States v. Richardson, 418 U.S. 166 (1974), and Schlesinger v. Reservists Committee to Stop the War, supra. In Richardson, the question was whether the plaintiff had standing as a federal taxpayer to argue that legislation which permitted the Central Intelligence Agency to withhold from the public detailed information about its expenditures violated the Accounts Clause of the Constitution. 18 We rejected plaintiff's claim of standing because "his challenge [was] not addressed to the taxing or spending power, but to the statutes regulating the CIA." 418 U.S., at 175 . The "mere recital" of those claims "demonstrate[d] how far he [fell] short of the standing criteria of Flast and how neatly he [fell] within the Frothingham holding left undisturbed." Id., at 174-175. The claim in Schlesinger was marred by the same deficiency. Plaintiffs in that case argued that the Incompatibility Clause of Art. I 19 prevented certain Members of Congress from holding commissions in the Armed Forces Reserve. We summarily rejected their assertion of standing as taxpayers because they "did not challenge an enactment under Art. I, 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status." 418 U.S., at 228 (footnote omitted). [454 U.S. 464, 482] Respondents, therefore, are plainly without standing to sue as taxpayers. The Court of Appeals apparently reached the same conclusion. It remains to be seen whether respondents have alleged any other basis for standing to bring this suit. IV Although the Court of Appeals properly doubted respondents' ability to establish standing solely on the basis of their taxpayer status, it considered their allegations of taxpayer injury to be "essentially an assumed role." 619 F.2d, at 261. "Plaintiffs have no reason to expect, nor perhaps do they care about, any personal tax saving that might result should they prevail. The crux of the interest at stake, the plaintiffs argue, is found in the Establishment Clause, not in the supposed loss of money as such. As a matter of primary identity, therefore, the plaintiffs are not so much taxpayers as separationists . . . ." Ibid. In the court's view, respondents had established standing by virtue of an "`injury in fact' to their shared individuated right to a government that `shall make no law respecting the establishment of religion.'" Ibid. The court distinguished this "injury" from "the question of `citizen standing' as such." Id., at 262. Although citizens generally could not establish standing simply by claiming an interest in governmental observance of the Constitution, respondents had "set forth instead a particular and concrete injury" to a "personal constitutional right." Id., at 265. The Court of Appeals was surely correct in recognizing that the Art. III requirements of standing are not satisfied by "the abstract injury in nonobservance of the Constitution asserted by . . . citizens." Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 223 , n. 13. This Court repeatedly has rejected claims of standing predicated on "`the right, possessed by every citizen, to require that the [454 U.S. 464, 483] Government be administered according to law . . . .' Fairchild v. Hughes, 258 U.S. 126, 129 1922.." Baker v. Carr, 369 U.S. 186, 208 (1962). See Schlesinger v. Reservists Committee to Stop the War, supra, at 216-222; Laird v. Tatum, 408 U.S. 1 (1972); Ex parte Levitt, 302 U.S. 633 (1937). Such claims amount to little more than attempts "to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government." Flast v. Cohen, 392 U.S., at 106 . In finding that respondents had alleged something more than "the generalized interest of all citizens in constitutional governance," Schlesinger, supra, at 217, the Court of Appeals relied on factual differences which we do not think amount to legal distinctions. The court decided that respondents' claim differed from those in Schlesinger and Richardson, which were predicated, respectively, on the Incompatibility and Accounts Clauses, because "it is at the very least arguable that the Establishment Clause creates in each citizen a `personal constitutional right' to a government that does not establish religion." 619 F.2d, at 265 (footnote omitted). The court found it unnecessary to determine whether this "arguable" proposition was correct, since it judged the mere allegation of a legal right sufficient to confer standing. This reasoning process merely disguises, we think with a rather thin veil, the inconsistency of the court's results with our decisions in Schlesinger and Richardson. The plaintiffs in those cases plainly asserted a "personal right" to have the Government act in accordance with their views of the Constitution; indeed, we see no barrier to the assertion of such claims with respect to any constitutional provision. But assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning. [454 U.S. 464, 484] Nor can Schlesinger and Richardson be distinguished on the ground that the Incompatibility and Accounts Clauses are in some way less "fundamental" than the Establishment Clause. Each establishes a norm of conduct which the Federal Government is bound to honor - to no greater or lesser extent than any other inscribed in the Constitution. To the extent the Court of Appeals relied on a view of standing under which the Art. III burdens diminish as the "importance" of the claim on the merits increases, we reject that notion. The requirement of standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, supra, at 99. Moreover, we know of no principled basis on which to create a hierarchy of constitutional values or a complementary "sliding scale" of standing which might permit respondents to invoke the judicial power of the United States. 20 [454 U.S. 464, 485] "The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries." Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 227 . The complaint in this case shares a common deficiency with those in Schlesinger and Richardson. Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in [454 U.S. 464, 486] constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. "[T]hat concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 369 U.S., at 204 , is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself. 21 In reaching this conclusion, we do not retreat from our earlier holdings that standing may be predicated on noneconomic injury. See, e. g., United States v. SCRAP, 412 U.S., at 686 -688; Association of Data Processing Service Orgs. v. Camp, 397 U.S., at 153 -154. We simply cannot see that respondents have alleged an injury of any kind, economic or otherwise, sufficient to confer standing. 22 Respondents complain [454 U.S. 464, 487] of a transfer of property located in Chester County, Pa. The named plaintiffs reside in Maryland and Virginia; 23 their organizational headquarters are located in Washington, D.C. They learned of the transfer through a news release. Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. 24 The federal courts were simply not constituted as ombudsmen of the general welfare. [454 U.S. 464, 488] V The Court of Appeals in this case ignored unambiguous limitations on taxpayer and citizen standing. It appears to have done so out of the conviction that enforcement of the Establishment Clause demands special exceptions from the requirement that a plaintiff allege "`distinct and palpable injury to himself,' . . . that is likely to be redressed if the requested relief is granted." Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100 (quoting Warth v. Seldin, 422 U.S., at 501 ). The court derived precedential comfort from Flast v. Cohen: "The underlying justification for according standing in Flast it seems, was the implicit recognition that the Establishment Clause does create in every citizen a personal constitutional right, such that any citizen, including taxpayers, may contest under that clause the constitutionality of federal expenditures." 619 F.2d, at 262. 25 The concurring opinion was even more direct. In its view, "statutes alleged to violate the Establishment Clause may not have an [454 U.S. 464, 489] individual impact sufficient to confer standing in the traditional sense." Id., at 267-268. To satisfy "the need for an available plaintiff," id., at 267, and thereby to assure a basis for judicial review, respondents should be granted standing because, "as a practical matter, no one is better suited to bring this lawsuit and thus vindicate the freedoms embodied in the Establishment Clause," id., at 266. Implicit in the foregoing is the philosophy that the business of the federal courts is correcting constitutional errors, and that "cases and controversies" are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. This philosophy has no place in our constitutional scheme. It does not become more palatable when the underlying merits concern the Establishment Clause. Respondents' claim of standing implicitly rests on the presumption that violations of the Establishment Clause typically will not cause injury sufficient to confer standing under the "traditional" view of Art. III. But "[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 227 . This view would convert standing into a requirement that must be observed only when satisfied. Moreover, we are unwilling to assume that injured parties are nonexistent simply because they have not joined respondents in their suit. The law of averages is not a substitute for standing. Were we to accept respondents' claim of standing in this case, there would be no principled basis for confining our exception to litigants relying on the Establishment Clause. Ultimately, that exception derives from the idea that the judicial power requires nothing more for its invocation than important issues and able litigants. 26 The existence of injured [454 U.S. 464, 490] parties who might not wish to bring suit becomes irrelevant. Because we are unwilling to countenance such a departure from the limits on judicial power contained in Art. III, the judgment of the Court of Appeals is reversed. It is so ordered. Footnotes [Footnote 1 The Act defines "excess property" as "property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities." 63 Stat. 378, 40 U.S.C. 472(e). [Footnote 2 The Act defines "surplus property" as "any excess property not required for the needs and the discharge of the responsibilities of all Federal agencies, as determined by the Administrator [of General Services]." 63 Stat. 379, 40 U.S.C. 472(g). [Footnote 3 See 20 U.S.C. 3411, 3441(a)(2)(P) (1976 ed., Supp. III). [Footnote 4 The property is to "be awarded to the applicant having a program of utilization which provides, in the opinion of the Department [of Education], the greatest public benefit." 34 CFR 12.5 (1980). Applicants must be willing and able to assume immediate responsibility for the property and must demonstrate the financial capacity to implement the approved program of educational use. 12.8(b). [Footnote 5 In calculating the public benefit allowance, the Secretary considers factors such as the applicant's educational accreditation, sponsorship of public service training, plans to introduce new instructional programs, commitment to student health and welfare, research, and service to the handicapped. 34 CFR pt. 12, Exh. A (1980). [Footnote 6 The remaining property was conveyed to local school districts for educational purposes or set aside for park and recreational use. At the time of the conveyance, petitioner was known as the Northeast Bible College. [Footnote 7 The appraiser placed no value on the buildings and fixtures situated on the tract. The buildings had been constructed for use as an Army hospital and, in his view, the expense necessary to render them useful for other purposes would have offset the value of such an endeavor. [Footnote 8 "Congress shall make no law respecting an establishment of religion . . . ." [Footnote 9 See Watt v. Energy Action Educational Foundation, ante, at 161; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 , 262 (1977); Warth v. Seldin, 422 U.S. 490, 499 (1975); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218 , 220-221 (1974); United States v. Richardson, 418 U.S. 166, 179 -180 (1974); O'Shea v. Littleton, 414 U.S. 488, 493 (1974); Linda R. S. v. Richard D., 410 U.S. 614, 617 -618 (1973). [Footnote 10 See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979); Duke Power Co. v. Carolina Environmental Study Group, Inc., supra, at 80; Singleton v. Wulff, 428 U.S. 106, 113 -114 (1976). [Footnote 11 See Gladstone, Realtors v. Village of Bellwood, supra, at 100; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 80 . [Footnote 12 See Gladstone, Realtors v. Village of Bellwood, supra, at 100, n. 6; Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 , n. 19 (1976). [Footnote 13 JUSTICE BRENNAN's dissent takes us to task for "tend[ing] merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law." Post, at 490. Were this Court constituted to operate a national classroom on "the meaning of rights" for the benefit of interested litigants, this criticism would carry weight. The teaching of Art. III, however, is that constitutional adjudication is available only on terms prescribed by the Constitution, among which is the requirement of a plaintiff with standing to sue. The dissent asserts that this requirement "overrides no other provision of the Constitution," post, at 493, but just as surely the Art. III power of the federal courts does not wax and wane in harmony with a litigant's desire for a "hospitable forum," post, at 494. Article III obligates a federal court to act only when it is assured of the power to do so, that is, when it is called upon to resolve an actual case or controversy. Then, and only then, may it turn its attention to other constitutional provisions and presume to provide a forum for the adjudication of rights. See Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring). [Footnote 14 Respondent Americans United has alleged no injury to itself as an organization, distinct from injury to its taxpayer members. As a result, its claim to standing can be no different from those of the members it seeks to represent. The question is whether "its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members [454 U.S. 464, 477] themselves brought suit." Warth v. Seldin, 422 U.S., at 511 . See Simon v. Eastern Kentucky Welfare Rights Org., supra, at 40; Sierra Club v. Morton, 405 U.S. 727, 739 -741 (1972). [Footnote 15 Respondents do not challenge the constitutionality of the Federal Property and Administrative Services Act itself, but rather a particular Executive Branch action arguably authorized by the Act. [Footnote 16 The Act was designed "to simplify the procurement, utilization, and disposal of Government property" in order to achieve an "efficient, businesslike system of property management." S. Rep. No. 475, 81st Cong., 1st Sess., 1 (1949). See H. R. Rep. No. 670, 81st Cong., 1st Sess., 1-2 (1949). Among the central purposes of the Act was the "maximum utilization of property already owned by the Government and minimum purchasing of new property." S. Rep. No. 475, supra, at 4. Congress recognized, however, that from time to time certain property would become surplus to the Government, and in particular, property acquired by the military to meet wartime contingencies. Congress provided a means of disposing of this property to meet well-recognized public priorities, including education. See S. Rep. No. 475, supra, at 4-5; H. R. Rep. No. 670, supra, at 5-6. [Footnote 17 Although not necessary to our decision, we note that any connection between the challenged property transfer and respondents' tax burden is at best speculative and at worst nonexistent. Although public funds were expended to establish the Valley Forge General Hospital, the land was acquired and the facilities constructed 30 years prior to the challenged transfer. Respondents do not challenge this expenditure, and we do not immediately perceive how such a challenge might now be raised. Nor do respondents dispute the Government's conclusion that the property has become useless for federal purposes and ought to be disposed of in some productive manner. In fact, respondents' only objection is that the Government did not receive adequate consideration for the transfer, because petitioner's use of the property will not confer a public benefit. See Brief for Respondents Americans United et al. 13. Assuming, arguendo, that this proposition is true, an assumption by no means clear, there is no basis for believing that a transfer to a different purchaser would have added to Government receipts. As the Government argues, "the ultimate purchaser would, in all likelihood, have been another non-profit institution or local school district rather than a purchaser for cash." Brief for Federal Respondents 30. Moreover, each year of delay in disposing of the property [454 U.S. 464, 481] depleted the Treasury by the amounts necessary to maintain a facility that had lost its value to the Government. Even if respondents had brought their claim within the outer limits of Flast, therefore, they still would have encountered serious difficulty in establishing that they "personally would benefit in a tangible way from the court's intervention." Warth v. Seldin, 422 U.S., at 508 . [Footnote 18 U.S. Const., Art. I, 9, cl. 7 ("[A]nd a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time"). [Footnote 19 U.S. Const., Art. I, 6, cl. 2 ("[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"). [Footnote 20 JUSTICE BRENNAN's dissent is premised on a revisionist reading of our precedents which leads to the conclusion that the Art. III requirement of standing is satisfied by any taxpayer who contends "that the Federal Government has exceeded the bounds of the law in allocating its largesse," post, at 508. "The concept of taxpayer injury necessarily recognizes the continuing stake of the taxpayer in the disposition of the Treasury to which he has contributed his taxes, and his right to have those funds put to lawful uses." Post, at 497-498. On this novel understanding, the dissent reads cases such as Frothingham and Flast as decisions on the merits of the taxpayers' claims. Frothingham is explained as a holding that a taxpayer ordinarily has no legal right to challenge congressional expenditures. Post, at 499. The dissent divines from Flast the holding that a taxpayer does have an enforceable right "to challenge a federal bestowal of largesse" for religious purposes. Post, at 509. This right extends to "the Government as a whole, regardless of which branch is at work in a particular instance," post, at 511, and regardless of whether the challenged action was an exercise of the spending power, post, at 512. However appealing this reconstruction of precedent may be, it bears little resemblance to the cases on which it purports to rest. Frothingham and Flast were decisions that plainly turned on standing, and just as plainly they rejected any notion that the Art. III requirement of direct injury is satisfied by a taxpayer who contends "that the Federal Government [454 U.S. 464, 485] has exceeded the bounds of the law in allocating its largesse." Post, at 508. Moreover, although the dissent's view may lead to a result satisfying to many in this case, it is not evident how its substitution of "legal interest," post, at 499, for "standing" enhances "our understanding of the meaning of rights under law," post, at 490. Logically, the dissent must shoulder the burden of explaining why taxpayers with standing have no "legal interest" in congressional expenditures except when it is possible to allege a violation of the Establishment Clause: yet it does not attempt to do so. Nor does the dissent's interpretation of standing adequately explain cases such as Schlesinger and Richardson. According to the dissent, the taxpayer plaintiffs in those cases lacked standing, not because they failed to challenge an exercise of the spending power, but because they did not complain of "the distribution of Government largesse." Post, at 511. And yet if the standing of a taxpayer is established by his "continuing stake . . . in the disposition of the Treasury to which he has contributed his taxes," post, at 497-498, it would seem to follow that he can assert a right to examine the budget of the CIA, as in Richardson, see 418 U.S., at 170 , and a right to argue that Members of Congress cannot claim Reserve pay from the Government, as in Schlesinger, see 418 U.S., at 211 . Of course, both claims have been rejected, precisely because Art. III requires a demonstration of redressable injury that is not satisfied by a claim that tax moneys have been spent unlawfully. [Footnote 21 In Schlesinger, we rejected the argument that standing should be recognized because "the adverse parties sharply conflicted in their interests and views and were supported by able briefs and arguments." 418 U.S., at 225 : "We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing `is not a question of motivation but of possession of the requisite . . . interest that is, or is threatened to be, injured by the unconstitutional conduct.' Doremus v. Board of Education, 342 U.S. 429, 435 (1952)." Id., at 225-226. [Footnote 22 Respondents rely on our statement in Association of Data Processing Service Orgs. v. Camp, 397 U.S., at 154 , that "[a] person or family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203 1963.." Respondents apparently construe this language to mean that any person asserting an Establishment Clause violation possesses a "spiritual stake" sufficient to confer standing. The language will not bear that weight. First, the language cannot be read apart from the context of its accompanying reference to Abington School District v. Schempp, 374 U.S. 203 (1963). In Schempp, the Court invalidated laws that required Bible [454 U.S. 464, 487] reading in the public schools. Plaintiffs were children who attended the schools in question, and their parents. The Court noted: "It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain. . . . The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain." Id., at 224, n. 9. The Court also drew a comparison with Doremus v. Board of Education, 342 U.S. 429 (1952), in which the identical substantive issues were raised, but in which the appeal was "dismissed upon the graduation of the school child involved and because of the appellants' failure to establish standing as taxpayers." 374 U.S., at 224 , n. 9. The Court's discussion of the standing issue is not extensive, but it is sufficient to show the error in respondents' broad reading of the phrase "spiritual stake." The plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause - for as Doremus demonstrated, that is insufficient - but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them. Respondents have alleged no comparable injury. [Footnote 23 Respondent Americans United claims that it has certain unidentified members who reside in Pennsylvania. It does not explain, however, how this fact establishes a cognizable injury where none existed before. Respondent is still obligated to allege facts sufficient to establish that one or more of its members has suffered, or is threatened with, an injury other than their belief that the transfer violated the Constitution. [Footnote 24 Respondents also claim standing by reference to the Administrative Procedure Act, 5 U.S.C. 702, which authorizes judicial review at the instance of any person who has been "adversely affected or aggrieved by [454 U.S. 464, 488] agency action within the meaning of a relevant statute." Neither the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III. See, e. g., Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100 ; Warth v. Seldin, 422 U.S., at 501 . Respondents do not allege that the Act creates a legal right, "the invasion of which creates standing," Linda R. S. v. Richard D., 410 U.S., at 617 , n. 3, and there is no other basis for arguing that its existence alters the rules of standing otherwise applicable to this case. [Footnote 25 The majority believed that the only thing which prevented this Court from openly acknowledging this position was the fact that the complaint in Flast had alleged no basis for standing other than the plaintiffs' taxpayer status. 619 F.2d, at 262. As the dissent below pointed out, this view is simply not in accord with the facts. See id., at 269-270. The Flast plaintiffs and several amici strongly urged the Court to adopt the same view of standing for which respondents argue in this case. The Court plainly chose not to do so. Even if respondents were correct in arguing that the Court in Flast was bound by a "perceived limitation in the pleadings," 619 F.2d, at 262, we are not so bound in this case, and we find no merit in respondents' vision of standing. [Footnote 26 Were we to recognize standing premised on an "injury" consisting solely of an alleged violation of a "`personal constitutional right' to a [454 U.S. 464, 490] government that does not establish religion," id., at 265, a principled consistency would dictate recognition of respondents' standing to challenge execution of every capital sentence on the basis of a personal right to a government that does not impose cruel and unusual punishment, or standing to challenge every affirmative-action program on the basis of a personal right to a government that does not deny equal protection of the laws, to choose but two among as many possible examples as there are commands in the Constitution. JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. A plaintiff's standing is a jurisdictional matter for Art. III courts, and thus a "threshold question" to be resolved before turning attention to more "substantive" issues. See Linda R. S. v. Richard D., 410 U.S. 614, 616 (1973). But in consequence there is an impulse to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the Court labels "standing"; this accounts for the phenomenon of opinions, such as the one today, that tend merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law. The serious by-product of that practice is that the Court disregards its constitutional responsibility when, by failing to acknowledge the protections afforded by the Constitution, it uses "standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits." 1 The opinion of the Court is a stark example of this unfortunate trend of resolving cases at the "threshold" while obscuring [454 U.S. 464, 491] the nature of the underlying rights and interests at stake. The Court waxes eloquent on the blend of prudential and constitutional considerations that combine to create our misguided "standing" jurisprudence. But not one word is said about the Establishment Clause right that the plaintiff seeks to enforce. And despite its pat recitation of our standing decisions, the opinion utterly fails, except by the sheerest form of ipse dixit, to explain why this case is unlike Flast v. Cohen, 392 U.S. 83 (1968), and is controlled instead by Frothingham v. Mellon, 262 U.S. 447 (1923). I There is now much in the way of settled doctrine in our understanding of the injury-in-fact requirement of Art. III. At the core is the irreducible minimum that persons seeking judicial relief from an Art. III court have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends . . . ." Baker v. Carr, 369 U.S. 186, 204 (1962). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978). Cases of this Court have identified the two essential components of this "personal stake" requirement. Plaintiff must have suffered, or be threatened with, some "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501 (1975). In addition, there must be some causal connection between plaintiff's asserted injury and defendant's challenged action. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). The Constitution requires an Art. III court to ascertain that both requirements are met before proceeding to exercise its authority on behalf of any plaintiff, whether the form of relief requested is equitable or monetary. But the existence of Art. III injury "often turns on the nature and source of the claim asserted." Warth v. Seldin, [454 U.S. 464, 492] supra, at 500. 2 Neither "palpable injury" nor "causation" is a term of unvarying meaning. There is much in the way of "mutual understandings" and "common-law traditions" that necessarily guides the definitional inquiry. 3 In addition, the Constitution, and by legislation the Congress, may impart a new, and on occasion unique, meaning to the terms "injury" and "causation" in particular statutory or constitutional contexts. The Court makes a fundamental mistake when it determines that a plaintiff has failed to satisfy the two-pronged "injury-in-fact" test, or indeed any other test of "standing," without first determining whether the Constitution or a statute defines injury, and creates a cause of action for redress of that injury, in precisely the circumstance presented to the Court. It may of course happen that a person believing himself injured in some obscure manner by government action will be held to have no legal right under the constitutional or statutory provision upon which he relies, and will not be permitted to complain of the invasion of another person's "rights." 4 It [454 U.S. 464, 493] is quite another matter to employ the rhetoric of "standing" to deprive a person, whose interest is clearly protected by the law, of the opportunity to prove that his own rights have been violated. It is in precisely that dissembling enterprise that the Court indulges today. The "case and controversy" limitation of Art. III overrides no other provision of the Constitution. 5 To construe that Article to deny standing "`to the class for whose sake [a] constitutional protection is given,'" Jones v. United States, 362 U.S. 257, 261 (1960), quoting New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 (1907), simply turns the Constitution on its head. Article III was designed to provide a [454 U.S. 464, 494] hospitable forum in which persons enjoying rights under the Constitution could assert those rights. How are we to discern whether a particular person is to be afforded a right of action in the courts? The Framers did not, of course, employ the modern vocabulary of standing. But this much is clear: The drafters of the Bill of Rights surely intended that the particular beneficiaries of their legacy should enjoy rights legally enforceable in courts of law. 6 See West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943). With these observations in mind, I turn to the problem of taxpayer standing in general, and this case in particular. II A Frothingham v. Mellon, 262 U.S. 447 (1923), involved a challenge to the Maternity Act of 1921, 42 Stat. 224, which provided financial grants to States that agreed to cooperate in programs designed to reduce infant and maternal mortality. Appellant contended that Congress, in enacting the program, had exceeded its authority under Art. I, and had intruded on authority reserved to the States. The Court described Mrs. Frothingham's claim as follows: "[T]his plaintiff alleges . . . that she is a taxpayer of the United States; and her contention, though not clear, seems to be that the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law. The right of a taxpayer to enjoin the execution [454 U.S. 464, 495] of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this Court." 262 U.S., at 486 . The Court conceded that it had historically treated the interest of a municipal taxpayer in the application of the municipality's funds as sufficiently direct and immediate to warrant injunctive relief to prevent misuse. Ibid. Bradfield v. Roberts, 175 U.S. 291 (1899), in which the Court permitted a federal taxpayer to present an Establishment Clause challenge to the use of federal money for the construction of hospital buildings in the District of Columbia, was held to fall within this rule because it was appropriate to treat the District of Columbia as a municipality. 7 But the Court distinguished Mrs. Frothingham's action against the United States: "[T]he relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury - partly realized from taxation and partly from other sources - is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity. [454 U.S. 464, 496] "The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern." 262 U.S., at 487 . After noting the importance of judicial restraint, the Court concluded: "The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Id., at 488. Frothingham's reasoning remains obscure. 8 The principal interpretive difficulty lies in the manner in which Frothingham chose to blend the language of policy with seemingly absolute statements about jurisdiction. For example, the Court commented with significance on the sheer number of taxpayers who might have raised a claim similar to that of Mrs. Frothingham. Id., at 487. Yet it can hardly be argued that the Constitution bars from federal court a plaintiff who has suffered injury merely because others are similarly aggrieved. "[S]tanding is not to be denied simply [454 U.S. 464, 497] because many people suffer the same injury." United States v. SCRAP, 412 U.S. 669, 687 (1973). And it is equally clear that the Constitution draws no distinction between injuries that are large, and those that are comparatively small. The line between more dollars and less is no valid constitutional measure. Cf. Everson v. Board of Education, 330 U.S. 1, 48 -49 (1947) (Rutledge, J., dissenting). The only distinction that a Constitution guaranteeing justice to all can recognize is one between some injury and none at all. 9 Frothingham also stressed the indirectness of the taxpayer's injury. But, as a matter of Art. III standing, if the causal relationship is sufficiently certain, the length of the causal chain is irrelevant. 10 See Warth v. Seldin, 422 U.S., at 505 . The financial stake of a federal taxpayer in the outcome of a lawsuit challenging an allegedly unlawful federal expenditure is not qualitatively different from that of a state or a municipal taxpayer attacking a local expenditure. More importantly, the injury suffered by a taxpayer is not dependent on the extent of his tax payment. The concept of taxpayer injury necessarily recognizes the continuing stake of the taxpayer in the disposition of the Treasury to which he [454 U.S. 464, 498] has contributed his taxes, and his right to have those funds put to lawful uses. Until Frothingham there was nothing in our precedents to indicate that this concept, so comfortably applied to municipal taxpayers, was inconsistent with the framework of rights and remedies established by the Federal Constitution. The explanation for the limit on federal taxpayer "standing" imposed by Frothingham must be sought in more substantive realms. Justice Harlan, dissenting in Flast, came close to identifying what I consider the unstated premise of the Frothingham rule: "[The] taxpayer's complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues." 392 U.S., at 128 . [454 U.S. 464, 499] In a similar vein, the Government argued in Flast that taxpayer suits involve only a disagreement by the taxpayer with the uses to which tax revenues were committed, and that the resolution of such disagreements is entrusted to branches of the Federal Government other than the judiciary. Id., at 98. The arguments of both the Government and Justice Harlan are phrased, as they must be, not in the language of "standing," but of "legal rights" and "justiciable issues." The Frothingham rule may be seen as founded solely on the prudential judgment by the Court that precipitate and unnecessary interference in the activities of a coequal branch of government should be avoided. Alternatively, Frothingham may be construed as resting upon an unarticulated, constitutionally established barrier between Congress' power to tax and its power to spend, which barrier makes it analytically impossible to mount an assault on the former through a challenge to the latter. But it is sufficient for present purposes to say that Frothingham held that the federal taxpayer has no continuing legal interest in the affairs of the Treasury analogous to a shareholder's continuing interest in the conduct of a corporation. Whatever its provenance, the general rule of Frothingham displays sound judgment: Courts must be circumspect in dealing with the taxing power in order to avoid unnecessary intrusion into the functions of the Legislative and Executive Branches. Congress' purpose in taxing will not ordinarily affect the validity of the tax. Unless the tax operates unconstitutionally, see, e. g., Murdock v. Pennsylvania, 319 U.S. 105 (1943), the taxpayer may not object to the use of his funds. Mrs. Frothingham's argument, that the use of tax funds for purposes unauthorized by the Constitution amounted to a violation of due process, did not provide her with the required legal interest because the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability. See Flast v. Cohen, 392 U.S., at 105 . Mrs. Frothingham's claim was thus reduced [454 U.S. 464, 500] to an assertion of "the States' interest in their legislative prerogatives," ibid., a third-party claim that could properly be barred. 11 But in Flast the Court faced a different sort of constitutional claim, and found itself compelled to retreat from the general assertion in Frothingham that taxpayers have no interest in the disposition of their tax payments. To understand why Frothingham's bar necessarily gave way in the face of an Establishment Clause claim, we must examine the right asserted by a taxpayer making such a claim. B In 1947, nine Justices of this Court recognized that the Establishment Clause does impose a very definite restriction on the power to tax. 12 The Court held in Everson v. Board of Education, 330 U.S., at 15 , that the "`establishment of religion' clause of the First Amendment means at least this:" [454 U.S. 464, 501] "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt, to teach or practice religion." Id., at 16. The Members of the Court could not have been more explicit. "One of our basic rights is to be free of taxation to support a transgression of the constitutional command that the authorities `shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'" Id., at 22 (Jackson, J., dissenting). "[A]part from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through the use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function. . . . [M]oney taken by taxation from one is not to be used or given to support another's religious training of belief, or indeed one's own." Id., at 44 (Rutledge, J., dissenting). In determining whether the law challenged in Everson was one "respecting an establishment of religion," the Court did not fail to examine the historic meaning of the constitutional language, "particularly with respect to the imposition of taxes." Id., at 8. For as Justice Rutledge pointed out in his dissent: "No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history." Id., at 33. That history bears a brief repetition in the present context. Many of the early settlers of this Nation came here to escape the tyranny of laws that compelled the support of government-sponsored churches and that inflicted punishments for the failure to pay establishment taxes and tithes. Id., at 8-9. But the inhabitants of the various Colonies soon displayed [454 U.S. 464, 502] a capacity to recreate the oppressive practices of the countries that they had fled. Once again persons of minority faiths were persecuted, and again such persons were subjected - this time by the colonial governments - to tithes and taxes for support of religion. Id., at 10, and n. 8; Reynolds v. United States, 98 U.S. 145, 162 -163 (1879). "These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment." Everson, supra, at 11 (footnotes omitted). In 1784-1785, before the adoption of the Constitution, the continuing conflict between those who saw state aid to religion as but the natural expression of "commonly shared" religious sentiments, and those who saw such support as a threat to the very notion of civil government, culminated in the battle fought in the Virginia House of Delegates over "a bill establishing provision for teachers of the Christian religion." 13 Reynolds, supra, at 162-163. The introduction of that bill in the state assembly prompted James Madison to prepare and circulate his famous "Memorial and Remonstrance Against Religious Assessments," imploring the legislature to establish and maintain the complete separation of religion and civil authority, and thus to reject the bill. In the end, the bill was rejected by the Virginia Legislature, and in its place Madison succeeded in securing the enactment of "A Bill for Establishing Religious Freedom," first introduced in the Virginia General Assembly seven years earlier by Thomas Jefferson. 98 U.S., at 163 ; Everson, 330 U.S., [454 U.S. 464, 503] at 11-13 (majority opinion); id., at 35-40 (Rutledge, J., dissenting). Because Madison and Jefferson played such leading roles in the events leading to the adoption of the First Amendment, the Everson opinions did not hesitate to reproduce the partial text of their Virginia bill as a primary source for understanding the objectives, and protections, afforded by the more concise phrasing of the Establishment Clause. Everson, supra, at 12-13, 28; see Reynolds, supra, at 163-164. Extracts from that bill also bear repeating in the present context. The preamble provided, in part: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern." 12 Hening's Stat. 85. Its operative language emphatically stated: "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief . . . ." Id., at 86. 14 Justice Rutledge summed up Madison's views in the following terms: "In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation. Not even `three pence' contribution was thus to be exacted from [454 U.S. 464, 504] any citizen for such a purpose. Tithes had been the life-blood of establishment before and after other compulsions disappeared. Madison and his coworkers made no exceptions or abridgments to the complete separation [between church and state] they created. Their objection was not to small tithes. It was to any tithes whatsoever. `If it were lawful to impose a small tax for religion, the admission would pave the way for oppressive levies.' Not the amount, but `the principle of the assessment was wrong.'" Everson, supra, at 40-41 (citation omitted). It is clear, in the light of this history, that one of the primary purposes of the Establishment Clause was to prevent the use of tax moneys for religious purposes. The taxpayer was the direct and intended beneficiary of the prohibition on financial aid to religion. 15 This basic understanding of the meaning of the Establishment Clause explains why the Court in Everson, while rejecting appellant's claim on the merits, [454 U.S. 464, 505] perceived the issue presented there as it did. The appellant sued "in his capacity as a district taxpayer," 330 U.S., at 3 , challenging the actions of the Board of Education in passing a resolution providing reimbursement to parents for the cost of transporting their children to parochial schools, and seeking to have that resolution "set aside." Appellant's Establishment Clause claim was precisely that the "statute . . . forced inhabitants to pay taxes to help support and maintain" church schools. Id., at 5. It seems obvious that all the Justices who participated in Everson would have agreed with Justice Jackson's succinct statement of the question presented: "Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination?" Id., at 21 (dissenting opinion). Given this view of the issues, could it fairly be doubted that this taxpayer alleged injury in precisely the form that the Establishment Clause sought to make actionable? 16 C In Flast v. Cohen, 392 U.S. 83 (1968), federal taxpayers sought to challenge the Department of Health, Education, and Welfare's administration of the Elementary and Secondary [454 U.S. 464, 506] Education Act of 1965: specifically the Department's practice of allowing funds distributed under that Act to be used to finance instruction in religious schools. Appellants urged that the use of federal funds for such a purpose violated the Establishment and Free Exercise Clauses of the First Amendment, and sought a declaration that this use of federal funds was not authorized by the Act, or that to the extent the use was authorized, the Act was "unconstitutional and void." Appellants further sought an injunction to bar appellees from approving any expenditure of funds for the allegedly unconstitutional purposes. Id., at 86-88. The Frothingham rule stood as a seemingly absolute barrier to the maintenance of the claim. The Court held, however, that the Frothingham barrier could be overcome by any claim that met both requirements of a two-part "nexus" test. The Justices who participated in Flast were not unaware of the Court's continued recognition of a federally cognizable "case or controversy" when a local taxpayer seeks to challenge as unconstitutional the use of a municipality's funds - [454 U.S. 464, 507] the propriety of which had, of course, gone unquestioned in Everson. 17 The Court was aware as well of the rule stated in Doremus v. Board of Education, 342 U.S. 429 (1952), that the interest of a taxpayer, even one raising an Establishment Clause claim, was limited to the actions of a government involving the expenditure of funds. But in reaching its holding, it is also quite clear that the Court was responding, not only to Everson's continued acceptance of municipal taxpayer actions but also to Everson's exposition of the history and meaning of the Establishment Clause. See Flast, supra, at 103-104. It is at once apparent that the test of standing formulated by the Court in Flast sought to reconcile the developing doctrine of taxpayer "standing" with the Court's historical understanding that the Establishment Clause was intended to prohibit the Federal Government from using tax funds for the advancement of religion, and thus the constitutional imperative of taxpayer standing in certain cases brought pursuant to the Establishment Clause. The two-pronged "nexus" test offered by the Court, despite its general language, 18 is [454 U.S. 464, 508] best understood as "a determinant of standing of plaintiffs alleging only injury as taxpayers who challenge alleged violations of the Establishment and Free Exercise Clauses of the First Amendment," and not as a general statement of standing principles. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 238 (1974) (BRENNAN, J., dissenting); Flast, 392 U.S., at 102 . The test explains what forms of governmental action may be attacked by someone alleging only taxpayer status, and, without ruling out the possibility that history might reveal another similarly founded provision, explains why an Establishment Clause claim is treated differently from any other assertion that the Federal Government has exceeded the bounds of the law in allocating its largesse. Thus, consistent with Doremus, Flast required, as the first prong of its test, that the taxpayer demonstrate a logical connection between his taxpayer status and the type of legislation attacked. Flast, supra, at 102. Appellants' challenge to a program of grants to educational institutions clearly satisfied this first requirement. 392 U.S., at 103 . As the second prong, consistent with the prohibition of taxpayer claims of the kind advanced in Frothingham, appellants were required to show a connection between their status and the precise nature of the infringement alleged. Flast, 392 U.S., at 102 . They had no difficulty meeting this requirement: the Court agreed that the Establishment Clause jealously protects taxpayers from diversion of their funds to the support of religion through the offices of the Federal Government. Id., at 103-104. [454 U.S. 464, 509] The nexus test that the Court "announced," id., at 102-103, sought to maintain necessary continuity with prior cases, and set forth principles to guide future cases involving taxpayer standing. But Flast did not depart from the principle that no judgment about standing should be made without a fundamental understanding of the rights at issue. Id., at 102. The two-part Flast test did not supply the rationale for the Court's decision, but rather its exposition: That rationale was supplied by an understanding of the nature of the restrictions on government power imposed by the Constitution and the intended beneficiaries of those restrictions. It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion. That is "the forbidden exaction." Everson v. Board of Education, 330 U.S., at 45 (Rutledge, J., dissenting) (emphasis added). See Flast, supra, at 115-116 (Fortas, J., concurring). In absolute terms the history of the Establishment Clause of the First Amendment makes this clear. History also makes it clear that the federal taxpayer is a singularly "proper and appropriate party to invoke a federal court's jurisdiction" to challenge a federal bestowal of largesse as a violation of the Establishment Clause. Each, and indeed every, federal taxpayer suffers precisely the injury that the Establishment Clause guards against when the Federal Government directs that funds be taken from the pocketbooks of the citizenry and placed into the coffers of the ministry. A taxpayer cannot be asked to raise his objection to such use of his funds at the time he pays his tax. Apart from the unlikely circumstance in which the Government announced in advance that a particular levy would be used for religious subsidies, taxpayers could hardly assert that they were being injured until the Government actually lent its support to a religious venture. Nor would it be reasonable to require him to address his claim to those officials charged with the collection [454 U.S. 464, 510] of federal taxes. Those officials would be without the means to provide appropriate redress - there is no practical way to segregate the complaining taxpayer's money from that being devoted to the religious purpose. Surely, then, a taxpayer must have standing at the time that he learns of the Government's alleged Establishment Clause violation to seek equitable relief in order to halt the continuing and intolerable burden on his pocketbook, his conscience, and his constitutional rights. III Blind to history, the Court attempts to distinguish this case from Flast by wrenching snippets of language from our opinions, and by perfunctorily applying that language under color of the first prong of Flast's two-part nexus test. The tortuous distinctions thus produced are specious, at best: at worst, they are pernicious to our constitutional heritage. First, the Court finds this case different from Flast because here the "source of [plaintiffs'] complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." Ante, at 479 (emphasis added). This attempt at distinction cannot withstand scrutiny. Flast involved a challenge to the actions of the Commissioner of Education, and other officials of HEW, in disbursing funds under the Elementary and Secondary Education Act of 1965 to "religious and sectarian" schools. Plaintiffs disclaimed "any intent[ion] to challenge . . . all programs under . . . the Act." Flast, supra, at 87. Rather, they claimed that defendant-administrators' approval of such expenditures was not authorized by the Act, or alternatively, to the extent the expenditures were authorized, the Act was "unconstitutional and void." Ibid. In the present case, respondents challenge HEW's grant of property pursuant to the Federal Property and Administrative Services Act of 1949, seeking to enjoin HEW "from making a grant of this and other property to the [defendant] so long as such a grant will violate the Establishment Clause." App. 12. It may be that the Court is concerned with the adequacy of respondents' pleading; respondents [454 U.S. 464, 511] have not, in so many words, asked for a declaration that the "Federal Property and Administrative Services Act is unconstitutional and void to the extent that it authorizes HEW's actions." I would not construe their complaint so narrowly. More fundamentally, no clear division can be drawn in this context between actions of the Legislative Branch and those of the Executive Branch. To be sure, the First Amendment is phrased as a restriction on Congress' legislative authority; this is only natural since the Constitution assigns the authority to legislate and appropriate only to the Congress. But it is difficult to conceive of an expenditure for which the last governmental actor, either implementing directly the legislative will, or acting within the scope of legislatively delegated authority, is not an Executive Branch official. The First Amendment binds the Government as a whole, regardless of which branch is at work in a particular instance. The Court's second purported distinction between this case and Flast is equally unavailing. The majority finds it "decisive" that the Federal Property and Administrative Services Act of 1949 "was an evident exercise of Congress' power under the Property Clause, Art. IV, 3, cl. 2," ante, at 480, while the Government action in Flast was taken under Art. I, 8. The Court relies on United States v. Richardson, 418 U.S. 166 (1974), and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), to support the distinction between the two Clauses, nothing that those cases involved alleged deviations from the requirements of Art. I, 9, cl. 7, and Art. I, 6, cl. 2, respectively. The standing defect in each case was not, however, the failure to allege a violation of the Spending Clause; rather, the taxpayers in those cases had not complained of the distribution of Government largesse, and thus failed to meet the essential requirement of taxpayer standing recognized in Doremus. It can make no constitutional difference in the case before us whether the donation to the petitioner here was in the form of a cash grant to build a facility, see Tilton v. Richardson, [454 U.S. 464, 512] 403 U.S. 672 (1971), or in the nature of a gift of property including a facility already built. That this is a meaningless distinction is illustrated by Tilton. In that case, taxpayers were afforded standing to object to the fact that the Government had not received adequate assurance that if the property that it financed for use as an educational facility was later converted to religious uses, it would receive full value for the property, as the Constitution requires. The complaint here is precisely that, although the property at issue is actually being used for a sectarian purpose, the Government has not received, nor demanded, full value payment. 19 Whether undertaken pursuant to the Property Clause or the Spending Clause, the breach of the Establishment Clause, and the relationship of the taxpayer to that breach, is precisely the same. 20 [454 U.S. 464, 513] IV Plainly hostile to the Framers' understanding of the Establishment Clause, and Flast's enforcement of that understanding, the Court vents that hostility under the guise of standing, "to slam the courthouse door against plaintiffs who [as the Framers intended] are entitled to full consideration of their [Establishment Clause] claims on the merits." Barlow v. Collins, 397 U.S. 159, 178 (1970) (BRENNAN, J., concurring in result and dissenting). Therefore, I dissent. [Footnote 1 Barlow v. Collins, 397 U.S. 159, 178 (1970) (BRENNAN, J., concurring in result and dissenting). [Footnote 2 "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." Linda R. S. v. Richard D., 410 U.S. 614, 617 , n. 3 (1973). The Framers of the Constitution, of course could, and did, exercise the same power. [Footnote 3 Justice Frankfurter identified two sources to assist in the definitional inquiry concerning injury: "A litigant ordinarily has standing to challenge a governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. Or standing may be based on an interest created by the Constitution or a statute." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (concurring opinion) (citations omitted). In identifying the types of injuries that might be recognized in private law actions as a basis for suits against the Government, Justice Frankfurter felt free to draw on principles of "common law." Id., at 152-153, 157-160. [Footnote 4 Of course, we generally permit persons to press federal suits even when the injury complained of is not obviously within the realm of injuries that a particular statutory or constitutional provision was designed to guard [454 U.S. 464, 493] against. We term that circumstance one of "third-party standing." In such situations, the Constitution requires us to determine whether the injury alleged is sufficiently "palpable" to fall within the contemplation of Art. III. If plaintiff has suffered injury in fact within the contemplation of Art. III, but is not obviously within the reach of the particular statutory or constitutional provision upon which the plaintiff founds his claim, we then bring prudential considerations to bear to determine whether the plaintiff should be allowed to maintain his action. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80 -81 (1978). In evaluating a claim of "third-party standing," we are, by definition, without specific constitutional or congressional direction, and are thus free to draw upon a wisdom peculiarly judicial in character - to elaborate upon the meaning of constitutionally cognizable injury, and then to weigh considerations of policy along with gleanings of legislative and constitutional intent, in order to determine whether the plaintiff should be permitted to maintain his claim. With the understanding that "the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met," id., at 81, we have only rarely interposed a bar to "third-party standing," particularly when constitutional violations are alleged. Indeed, the only firm exception to this generally permissive attitude toward third-party suits is the restriction on taxpayer suits. Id., at 79-81. [Footnote 5 When the Constitution makes it clear that a particular person is to be protected from a particular form of government action, then that person has a "right" to be free of that action; when that right is infringed, then there is injury, and a personal stake, within the meaning of Art. III. [Footnote 6 As James Madison noted, if a bill of rights were "incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439 (1789). [Footnote 7 As an attempt to afford a taxpayer living in the District of Columbia with the same rights as a taxpayer living in a municipality, the Court's treatment of Bradfield has some persuasive force. But if the ban on federal taxpayer standing had been considered to be of constitutional origin, no analogy could have sufficed to cure the jurisdictional defect. Appellant had not alleged that he was a taxpayer of the District of Columbia, but rather that he was a "citizen and taxpayer of the United States and a resident of the District of Columbia." 175 U.S., at 295 (emphasis added). Although the court below deemed the suit to be against Ellis H. Roberts, not as Treasurer of the United States but as Treasurer of the District of Columbia, Roberts v. Bradfield, 12 App. D.C. 453, 459-460 (1898), standing plainly rested on appellant's federal taxpayer status. [Footnote 8 The question apparently remains open whether Frothingham stated a prudential limitation or identified an Art. III barrier. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 79 , n. 25; United States v. Richardson, 418 U.S. 166, 181 , 196, n. 18 (1974) (POWELL, J., concurring). It was generally agreed at the time of Flast v. Cohen, 392 U.S. 83, 92 , n. 6, 101 (1968), and clearly the view of Justice Harlan in dissent, id., at 130, that the rule stated reflected prudential and policy considerations, not constitutional limitations. Perhaps the case is most usefully understood as a "substantive" declaration of the legal rights of a taxpayer with respect to Government spending, coupled with a prudential restriction on the taxpayer's ability to raise the claims of third parties. Under any construction, however, Frothingham must give way to a taxpayer's suit brought under the Establishment Clause. [Footnote 9 Indeed, as noted in Flast, supra, the stake in the federal Treasury of major corporate taxpayers was not in any sense trivial. Indeed there was a time when a federal program involving an expenditure from the Treasury of $10 billion would very likely result in an increase of $150 million in the tax bill of a major corporation such as General Motors. See Hearings on S. 2097 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd Sess., pt. 2, p. 493 (1966) (letter from K. C. Davis to Sen. Sam Ervin); Note, 69 Yale L. J. 895, 917, n. 127 (1960). [Footnote 10 Even if actual impact on the taxpayer's pocketbook were deemed the test of taxpayer standing, the cases in which a tenuous causal connection between the injury alleged and the challenged action formed the basis for denying plaintiffs standing do not control the case of a taxpayer challenging a Government expenditure. Compare Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R. S. v. Richard D., 410 U.S. 614 (1973); with Duke Power [454 U.S. 464, 498] Co. v. Carolina Environmental Study Group, Inc., supra; and United States v. SCRAP, 412 U.S. 669 (1973). Frothingham's obstacle was not an inability to show that the alleged injury was "likely to be redressed by a favorable decision." Simon, supra, at 38. In each of the above-cited cases in which standing was denied, the difficulty was that an intermediate link in the causal chain - a third party beyond the control of the court - might serve to bar effective relief. Even if the court acceded to plaintiffs' view of the law, the court's decree might prove ineffectual to relieve plaintiffs' injury because of the independent action of some third party. See 426 U.S., at 41 -42; Warth v. Seldin, supra, at 505-507. The situation of the taxpayer is not comparable because there is no problem of intervening cause. The defendant has the full power to correct the plaintiff's difficulty and, if the court concludes that as a matter of law and fact plaintiff is indeed required to provide defendant redress, it has the power to provide relief. The factual aspect of the causal connection is sure. [Footnote 11 With respect to the enforcement of constitutional restrictions, we have not been overly elegant in defining the class of persons who may object to particular forms of government action. Only the constitutional minimum of injury in fact has been required. As the Court recently noted: "We . . . cannot accept the contention that, outside the context of taxpayers' suits, a litigant must demonstrate something more than injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 79 . See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 225 , n. 15 (1974). Nevertheless, I do not suggest that the Frothingham limitation on federal taxpayer suits should be abandoned. The barrier it evinces between the taxing power and the spending power, whether it be deemed one of constitutional construction or judicial prudence, reflects fundamental conceptions about the nature of the legislative process, and is, in any event, now firmly embedded in our cases. That barrier is necessarily pierced, however, by an Establishment Clause claim. [Footnote 12 Justice Black, joined by Chief Justice Vinson, and Justices Reed, Douglas, and Murphy, wrote for the majority and concluded that the challenged activity was not a support of religion; Justice Jackson wrote one dissent joined in by Justice Frankfurter; Justice Rutledge also authored a dissent, in which Justices Jackson, Frankfurter, and Burton joined. Both dissents clearly affirmed this constitutional restriction on the power to tax. 330 U.S., at 22 , 33. [Footnote 13 The bill, and Madison's Remonstrance, are both appended to the dissenting opinion of Justice Rutledge in Everson. Id., at 63-74. [Footnote 14 Although the bill is in some sense merely the pronouncement of a small legislative body, its proscription was intended to transcend temporal bounds. The enactment concludes: "And though we well know that this Assembly, enacted by the people for the ordinary purposes of legislation only, have no power to restrain the [454 U.S. 464, 504] acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right." 12 Hening's Stat. 86. By incorporation of its principles in the Bill of Rights, the bill was transformed from mere hortatory expression, into a guarantee of lasting and binding rights against the Government. [Footnote 15 The position of a taxpayer with respect to a Government grant of a tax exemption to a religious institution is qualitatively different from the position of a taxpayer objecting to a subsidy. "A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, `[i]n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while `[i]n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by [454 U.S. 464, 505] the churches through voluntary contributions.'" Walz v. Tax Comm'n of New York City, 397 U.S. 664, 690 -691 (1970) (BRENNAN, J., concurring) (footnote omitted), quoting Gianella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. 2, 81 Harv. L. Rev. 513, 533 (1968). Of course, irrespective of the taxpayers' stake in the controversy, in terms of the prohibition on government action imposed by the Establishment Clause, there is also a qualitative difference between a subsidy and an exemption. Ibid. [Footnote 16 Justice Jackson, writing for the Court in Doremus v. Board of Education, 342 U.S. 429 (1952), explored the limitations of taxpayer standing under the Establishment Clause. In that case two New Jersey taxpayers challenged a New Jersey law that directed public school teachers to read selected passages from the Bible, seeking a declaratory judgment that such a law violated the Establishment Clause. The Court concluded that the taxpayer lacked standing: "There is no allegation that this activity is supported by any separate tax [454 U.S. 464, 506] or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants and there is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it." Id., at 433. The Court had no difficulty distinguishing Everson: "Everson showed a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of. This complaint does not." 342 U.S., at 434 . The difference between the two cases is relevant to the "standing" of taxpayers generally and most especially to taxpayers asserting claims under the Establishment Clause, for it is clear that even under the Establishment Clause the taxpayer's protection was against the use of his funds and not against the conduct of the government generally. The distinction between Doremus and Everson may be phrased alternatively: Everson was injured in a manner comprehended by the Establishment Clause, and Doremus was not. [Footnote 17 The anomaly of allowing a municipality's actions to be challenged by a local taxpayer in federal court as a violation of the Establishment Clause, made applicable to the States by virtue of the Fourteenth Amendment, while exempting the Federal Government, whose use of the taxing power in aid of religion was the target of the Framers' adoption of the Establishment Clause, also must have been apparent to the Court. [Footnote 18 The test was formulated with the Establishment Clause in mind, but the Court wisely sought to phrase the principle it stood for in general terms: "We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional [454 U.S. 464, 508] action under the taxing and spending clause is in derogation of those constitutional provision which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power." 392 U.S., at 105 -106. In the years since the announcement of the Flast test we have yet to recognize a similar restriction on Congress' power to tax, and I know of none. Nevertheless, like the Justices who joined in the Court opinion in Flast, I remain reluctant to rule out the possibility. [Footnote 19 It is uncontested here that the property at issue was initially purchased with tax funds, and bears the mark of $10 million in federal improvements. At the time of its transfer to the petitioner, its fair market value was approximately $1.3 million. Americans United v. U.S. Dept. of HEW, 619 F.2d 252, 253 (CA3 1980). The Federal Property and Administrative Services Act of 1949 clearly requires that, whenever possible, fair market value is to be received for property transferred pursuant to its provisions. See 40 U.S.C. 484(e)(1), 484(e)(3)(G). Proceeds "from any sale, lease, or other disposition of surplus property, shall be covered into the Treasury as miscellaneous receipts . . . ." 40 U.S.C. 485(a). The Act provides, however, that "surplus real property, including buildings, fixtures and equipment situated thereon" may be designated by HEW as necessary for "school, classroom, or other educational use." 40 U.S.C. 484(k)(1). Such property may be transferred to a "nonprofit educational institution." 40 U.S.C. 484(k)(1)(A). In fixing the price of such property, the Secretary is required to consider any benefit that may accrue to the United States from the use of the property. 40 U.S.C. 484(k) (1)(C). By failing to require any payment from petitioner college, the Secretary apparently determined that the benefit to the United States exceeded the fair market value. But it is entirely clear from Tilton that if the facility is and was used for sectarian purposes, the Government was required to obtain full market value at the time such use commences. [Footnote 20 The Framers of the First Amendment could not have viewed it as less objectionable to the taxpayer to learn that his tax funds were used by his [454 U.S. 464, 513] Government to purchase property, construct a church, and deed the property to a religious order, than to find his Government providing the funds to a church to undertake its own construction. So far as the Establishment Clause and the position of the taxpayer are concerned, the situations are interchangeable. Surely James Madison perceived no nice distinction between a grant of land and a grant of funds, when he vetoed a bill providing certain land to a church: "[T]he bill in reserving a certain parcel of land of the United States for the use of said [church] comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that `Congress shall make no law respecting a religious establishment.'" 1 J. Richardson, Messages and Papers of the Presidents 490 (1897). Nor has Congress perceived a distinction between an appropriation of money and an appropriation of property. For example, in 1896 Congress included in its Appropriation Act for the District of Columbia a statement declaring it "to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for services, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control." 29 Stat. 411. See Lemon v. Kurtzman, 403 U.S. 602, 648 (1971) (opinion of BRENNAN, J.). JUSTICE STEVENS, dissenting. In Parts I, II, and III of his dissenting opinion, JUSTICE BRENNAN demonstrates that respondent taxpayers have standing to mount an Establishment Clause challenge against the Federal Government's transfer of property worth $1,300,000 to the Assemblies of God. For the Court to hold [454 U.S. 464, 514] that plaintiffs' standing depends on whether the Government's transfer was an exercise of its power to spend money, on the one hand, or its power to dispose of tangible property, on the other, is to trivialize the standing doctrine. One cannot read the Court's opinion and the concurring opinions of Justice Stewart and Justice Fortas in Flast v. Cohen, 392 U.S. 83 , without forming the firm conclusion that the plaintiffs' invocation of the Establishment Clause was of decisive importance in resolving the standing issue in that case. Justice Fortas made this point directly: "I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws `respecting an establishment of religion.' This thesis, slender as its basis is, provides a direct `nexus,' as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique `nexus,' in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the `establishment' issue. This special claim is enough, I think, to permit us to allow the suit, coupled, as it is, with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer - and upon the life of all citizens. "Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented - the separation of state and church - which the Founding Fathers regarded [454 U.S. 464, 515] as fundamental to our constitutional system - should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided. "On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxpayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause." Id., at 115-116. Today the Court holds, in effect, that the Judiciary has no greater role in enforcing the Establishment Clause than in enforcing other "norm[s] of conduct which the Federal Government is bound to honor," ante, at 484, such as the Accounts Clause, United States v. Richardson, 418 U.S. 166 , and the Incompatibility Clause, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 . Ironically, however, its decision rests on the premise that the difference between a disposition of funds pursuant to the Spending Clause and a disposition of realty pursuant to the Property Clause is of fundamental jurisprudential significance. With all due respect, I am persuaded that the essential holding of Flast v. Cohen attaches special importance to the Establishment Clause and does not permit the drawing of a tenuous distinction between the Spending Clause and the Property Clause. For this reason, and for the reasons stated in Parts I, II, and III of JUSTICE BRENNAN'S opinion, I would affirm the judgment of the Court of Appeals. [454 U.S. 464, 516]

conservative

person

judicial_power

1968-121-01

United States Supreme Court RED LION BROADCASTING CO. v. FCC(1969) No. 717 Argued: Decided: June 9, 1969 [Footnote * Together with No. 717, United States et al. v. Radio Television News Directors Assn. et al., on certiorari to the United States Court of Appeals for the Seventh Circuit, argued April 3, 1969. The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook, and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation the FCC began a rule-making proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717), as abridging the freedoms of speech and press. Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the FCC was implementing congressional policy. Pp. 375-386. (a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicant in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. Pp. 375-379. (b) The FCC's statutory mandate to see that broadcasters operate in the public interest and Congress' reaffirmation, in the [395 U.S. 367, 368] 1959 amendment to 315 of the Communications Act, of the FCC's view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. Pp. 379-386. 2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 386-401. (a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 386-390. (b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 390-392. (c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is at best speculative, and, in any event, the FCC has authority to guard against this danger. Pp. 392-395. (d) There was nothing vague about the FCC's specific ruling in the Red Lion case and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. Pp. 395-396. (e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. Pp. 396-400. No. 2, 127 U.S. App. D.C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 1002, reversed and remanded. Roger Robb argued the cause for petitioners in No. 2. With him on the brief were H. Donald Kistler and Thomas B. Sweeney. Solicitor General Griswold argued the cause for the United States and the Federal Communications Commission, petitioners in No. 717 and respondents in No. 2. With him on the brief were [395 U.S. 367, 369] Assistant Attorney General McLaren, Deputy Solicitor General Springer, Francis X. Beytagh, Jr., Henry Geller, and Daniel R. Ohlbaum. Archibald Cox argued the cause for respondents in No. 717. With him on the brief for respondents Radio Television News Directors Assn. et al. were W. Theodore Pierson, Harold David Cohen, Vernon C. Kohlhaas, and J. Laurent Scharff. On the brief for respondent National Broadcasting Co., Inc., were Lawrence J. McKay, Raymond L. Falls, Jr., Corydon B. Dunham, Howard Monderer, and Abraham P. Ordover. On the brief for respondent Columbia Broadcasting System, Inc., were Lloyd N. Cutler, J. Roger Wollenberg, Timothy B. Dyk, Robert V. Evans, and Herbert Wechsler. Briefs of amici curiae urging reversal in No. 717 and affirmance in No. 2 were filed by Melvin L. Wulf and Eleanor Holmes Norton for the American Civil Liberties Union, and by Earle K. Moore and William B. Ball for the Office of Communication of the United Church of Christ et al. J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor & Congress of Industrial Organizations urging reversal in No. 717. MR. JUSTICE WHITE delivered the opinion of the Court. The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory [395 U.S. 367, 370] requirement of 315 of the Communications Act 1 that equal time be allotted all qualified candidates for public office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion [395 U.S. 367, 371] involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC's 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun. I. A. The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater - Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a "book to smear and destroy Barry Goldwater." 2 When Cook heard of the broadcast he [395 U.S. 367, 372] concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, 3 the [395 U.S. 367, 373] FCC's position was upheld as constitutional and otherwise proper. 127 U.S. App. D.C. 129, 381 F.2d 908 (1967). B. Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making, 31 Fed. Reg. 5710, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed, 32 Fed. Reg. 10303. Twice amended, 32 Fed. Reg. 11531, 33 Fed. Reg. 5362, the rules were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seventh Circuit, on review of the rule-making proceeding, as abridging the freedoms of speech and press. 400 F.2d 1002 (1968). As they now stand amended, the regulations read as follows: "Personal attacks; political editorials. "(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the [395 U.S. 367, 374] attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities. "(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee). "NOTE: The fairness doctrine is applicable to situations coming within [(3)], above, and, in a specific factual situation, may be applicable in the general area of political broadcasts [(2)], above. See, section 315 (a) of the Act, 47 U.S.C. 315 (a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 F. R. 10415. The categories listed in [(3)] are the same as those specified in section 315 (a) of the Act. "(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the [395 U.S. 367, 375] licensee's facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion." 47 CFR 73.123, 73.300, 73.598, 73.679 (all identical). C. Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional, reversing the judgment below in RTNDA and affirming the judgment below in Red Lion. II. The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own. A. Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. 4 [395 U.S. 367, 376] It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony î of competing voices, none of which could be clearly and predictably heard. 5 Consequently, the Federal Radio Commission was established [395 U.S. 367, 377] to allocate frequencies among competing applicants in a manner responsive to the public "convenience, interest, or necessity." 6 Very shortly thereafter the Commission expressed its view that the "public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies . . . to all discussions of issues of importance to the public." Great Lakes Broadcasting Co., 3 F. R. C. Ann. Rep. 32, 33 (1929), rev'd on other grounds, 59 App. D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC, Trinity Methodist Church, South v. FRC, 61 App. D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599 (1933), and its successor FCC, Young People's Association for the Propagation of the Gospel, 6 F. C. C. 178 (1938). After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, Mayflower Broadcasting Corp., 8 F. C. C. 333 (1940), the latter limitation on the licensee was abandoned and the doctrine developed into its present form. There is a twofold duty laid down by the FCC's decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, 13 F. C. C. 1246 (1949). The broadcaster must give adequate coverage to public issues, United Broadcasting Co., 10 F. C. C. 515 (1945), and coverage must be fair in that it accurately reflects the opposing views. New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). This must be done at the broadcaster's own expense if sponsorship is unavailable. Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963). [395 U.S. 367, 378] Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950). The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset, Great Lakes Broadcasting Co., 3 F. R. C. Ann. Rep. 32 (1929), rev'd on other grounds, 59 App. D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (1930); Chicago Federation of Labor v. FRC, 3 F. R. C. Ann. Rep. 36 (1929), aff'd, 59 App. D.C. 333, 41 F.2d 422 (1930); KFKB Broadcasting Assn. v. FRC, 60 App. D.C. 79, 47 F.2d 670 (1931), and in particular respects the personal attack rules and regulations at issue here have spelled them out in greater detail. When a personal attack has been made on a figure involved in a public issue, both the doctrine of cases such as Red Lion and Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), and also the 1967 regulations at issue in RTNDA require that the individual attacked himself be offered an opportunity to respond. Likewise, where one candidate is endorsed in a political editorial, the other candidates must themselves be offered reply time to use personally or through a spokesman. These obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party's side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine. The simple fact that the attacked men or unendorsed candidates may respond themselves or through [395 U.S. 367, 379] agents is not a critical distinction, and indeed, it is not unreasonable for the FCC to conclude that the objective of adequate presentation of all sides may best be served by allowing those most closely affected to make the response, rather than leaving the response in the hands of the station which has attacked their candidacies, endorsed their opponents, or carried a personal attack upon them. B. The statutory authority of the FCC to promulgate these regulations derives from the mandate to the "Commission from time to time, as public convenience, interest, or necessity requires" to promulgate "such rules and regulations and prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of this chapter . . . ." 47 U.S.C. 303 and 303 (r). 7 The Commission is specifically directed to consider the demands of the public interest in the course of granting licenses, 47 U.S.C. 307 (a), 309 (a); [395 U.S. 367, 380] renewing them, 47 U.S.C. 307; and modifying them. Ibid. Moreover, the FCC has included among the conditions of the Red Lion license itself the requirement that operation of the station be carried out in the public interest, 47 U.S.C. 309 (h). This mandate to the FCC to assure that broadcasters operate in the public interest is a broad one, a power "not niggardly but expansive," National Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943), whose validity we have long upheld. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940); FCC v. RCA Communications, Inc., 346 U.S. 86, 90 (1953); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933). It is broad enough to encompass these regulations. The fairness doctrine finds specific recognition in statutory form, is in part modeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history. In 1959 the Congress amended the statutory requirement of 315 that equal time be accorded each political candidate to except certain appearances on news programs, but added that this constituted no exception "from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Act of September 14, 1959, 1, 73 Stat. 557, amending 47 U.S.C. 315 (a) (emphasis added). This language makes it very plain that Congress, in 1959, announced that the phrase "public interest," which had been in the Act since 1927, imposed a duty on broadcasters to discuss both sides of controversial public issues. In other words, the amendment vindicated the FCC's general view that the fairness doctrine inhered in the public interest standard. Subsequent legislation declaring the intent of an earlier statute [395 U.S. 367, 381] is entitled to great weight in statutory construction. 8 And here this principle is given special force by the equally venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, 9 especially when Congress has refused to alter the administrative construction. 10 Here, the Congress has not just kept its silence by refusing to overturn the administrative construction, 11 but has ratified it with [395 U.S. 367, 382] positive legislation. Thirty years of consistent administrative construction left undisturbed by Congress until 1959, when that construction was expressly accepted, reinforce the natural conclusion that the public interest language of the Act authorized the Commission to require licensees to use their stations for discussion of public issues, and that the FCC is free to implement this requirement by reasonable rules and regulations which fall short of abridgment of the freedom of speech and press, and of the censorship proscribed by 326 of the Act. 12 The objectives of 315 themselves could readily be circumvented but for the complementary fairness doctrine ratified by 315. The section applies only to campaign appearances by candidates, and not by family, friends, campaign managers, or other supporters. Without the fairness doctrine, then, a licensee could ban all campaign appearances by candidates themselves from the air 13 and [395 U.S. 367, 383] proceed to deliver over his station entirely to the supporters of one slate of candidates, to the exclusion of all others. In this way the broadcaster could have a far greater impact on the favored candidacy than he could by simply allowing a spot appearance by the candidate himself. It is the fairness doctrine as an aspect of the obligation to operate in the public interest, rather than 315, which prohibits the broadcaster from taking such a step. The legislative history reinforces this view of the effect of the 1959 amendment. Even before the language relevant here was added, the Senate report on amending 315 noted that "broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license is mandated to operate in the public interest and has assumed the obligation of presenting important public questions fairly and without bias." S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). See also, specifically adverting to Federal Communications Commission doctrine, id., at 13. Rather than leave this approval solely in the legislative history, Senator Proxmire suggested an amendment to make it part of the Act. 105 Cong. Rec. 14457. This amendment, which Senator Pastore, a manager of the bill and a ranking member of the Senate Committee, considered "rather surplusage," 105 Cong. Rec. 14462, constituted a positive statement of doctrine 14 and was altered [395 U.S. 367, 384] to the present merely approving language in the conference committee. In explaining the language to the Senate after the committee changes, Senator Pastore said: "We insisted that that provision remain in the bill, to be a continuing reminder and admonition to the Federal Communications Commission and to the broadcasters alike, that we were not abandoning the philosophy that gave birth to section 315, in giving the people the right to have a full and complete disclosure of conflicting views on news of interest to the people of the country." 105 Cong. Rec. 17830. Senator Scott, another Senate manager, added that: "It is intended to encompass all legitimate areas of public importance which are controversial," not just politics. 105 Cong. Rec. 17831. It is true that the personal attack aspect of the fairness doctrine was not actually adjudicated until after 1959, so that Congress then did not have those rules specifically before it. However, the obligation to offer time to reply to a personal attack was presaged by the FCC's 1949 Report on Editorializing, which the FCC views as the principal summary of its ratio decidendi in cases in this area: "In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as . . . whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter's personal involvement in the controversy may also be a factor which must be considered, for elementary considerations of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station, where otherwise no such obligation would exist." 13 F. C. C., at 1251-1252. [395 U.S. 367, 385] When the Congress ratified the FCC's implication of a fairness doctrine in 1959 it did not, of course, approve every past decision or pronouncement by the Commission on this subject, or give it a completely free hand for the future. The statutory authority does not go so far. But we cannot say that when a station publishes personal attacks or endorses political candidates, it is a misconstruction of the public interest standard to require the station to offer time for a response rather than to leave the response entirely within the control of the station which has attacked either the candidacies or the men who wish to reply in their own defense. When a broadcaster grants time to a political candidate, Congress itself requires that equal time be offered to his opponents. It would exceed our competence to hold that the Commission is unauthorized by the statute to employ a similar device where personal attacks or political editorials are broadcast by a radio or television station. In light of the fact that the "public interest" in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public; the fact that the FCC has rested upon that language from its very inception a doctrine that these issues must be discussed, and fairly; and the fact that Congress has acknowledged that the analogous provisions of 315 are not preclusive in this area, and knowingly preserved the FCC's complementary efforts, we think the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. The Communications Act is not notable for the precision of its substantive standards and in this respect the explicit provisions of 315, and the doctrine and rules at issue here which are closely modeled upon that section, are far more explicit than the generalized "public interest" standard in which the Commission ordinarily finds its [395 U.S. 367, 386] sole guidance, and which we have held a broad but adequate standard before. FCC v. RCA Communications, Inc., 346 U.S. 86, 90 (1953); National Broadcasting Co. v. United States, 319 U.S. 190, 216 -217 (1943); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933). We cannot say that the FCC's declaratory ruling in Red Lion, or the regulations at issue in RTNDA, are beyond the scope of the congressionally conferred power to assure that stations are operated by those whose possession of a license serves "the public interest." III. The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters. A. Although broadcasting is clearly a medium affected by a First Amendment interest, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948), differences in the characteristics of new media justify differences in the First Amendment standards applied to them. 15 Joseph [395 U.S. 367, 387] Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952). For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and applied without discrimination. Kovacs v. Cooper, 336 U.S. 77 (1949). Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. Associated Press v. United States, 326 U.S. 1, 20 (1945). When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is [395 U.S. 367, 388] incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology. It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, 16 as the Court has noted at length before. National Broadcasting Co. v. United States, 319 U.S. 190, 210 -214 (1943). It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast [395 U.S. 367, 389] licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933). No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech." National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943). By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in 326, which forbids FCC interference with "the right [395 U.S. 367, 390] of free speech by means of radio communication." Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 361 -362 (1955); 2 Z. Chafee, Government and Mass Communications 546 (1947). It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v. United States, 326 U.S. 1, 20 (1945); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74 -75 (1964). See Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC. B. Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that [395 U.S. 367, 391] each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use. In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal-time provision of 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, which has been part of the law since 1927, Radio Act of 1927, 18, 44 Stat. 1170, has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned. 17 Farmers Educ. & Coop. Union v. WDAY, 360 U.S. 525 (1959). [395 U.S. 367, 392] Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. 18 Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." Associated Press v. United States, 326 U.S. 1, 20 (1945). C. It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression [395 U.S. 367, 393] to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled. At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. 19 It would be better if the FCC's encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect. That this will occur now seems unlikely, however, since if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. [395 U.S. 367, 394] It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect. Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. 301. Unless renewed, they expire within three years. 47 U.S.C. 307 (d). The statute mandates the issuance of licenses if the "public convenience, interest, or necessity will be served thereby." 47 U.S.C. 307 (a). In applying this standard the Commission for 40 years has been choosing licensees based in part on their program proposals. In FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933), the Court noted that in "view of the limited number of available broadcasting frequencies, the Congress has authorized allocation and licenses." In determining how best to allocate frequencies, the Federal Radio Commission considered the needs of competing communities and the programs offered by competing stations to meet those needs; moreover, if needs or programs shifted, the Commission could alter its allocations to reflect those shifts. Id., at 285. In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137 -138 (1940), the Court noted that [395 U.S. 367, 395] the statutory standard was a supple instrument to effect congressional desires "to maintain . . . a grip on the dynamic aspects of radio transmission" and to allay fears that "in the absence of governmental control the public interest might be subordinated to monopolistic domination in the broadcasting field." Three years later the Court considered the validity of the Commission's chain broadcasting regulations, which among other things forbade stations from devoting too much time to network programs in order that there be suitable opportunity for local programs serving local needs. The Court upheld the regulations, unequivocally recognizing that the Commission was more than a traffic policeman concerned with the technical aspects of broadcasting and that it neither exceeded its powers under the statute nor transgressed the First Amendment in interesting itself in general program format and the kinds of programs broadcast by licensees. National Broadcasting Co. v. United States, 319 U.S. 190 (1943). D. The litigants embellish their First Amendment arguments with the contention that the regulations are so vague that their duties are impossible to discern. Of this point it is enough to say that, judging the validity of the regulations on their face as they are presented here, we cannot conclude that the FCC has been left a free hand to vindicate its own idiosyncratic conception of the public interest or of the requirements of free speech. Past adjudications by the FCC give added precision to the regulations; there was nothing vague about the FCC's specific ruling in Red Lion that Fred Cook should be provided an opportunity to reply. The regulations at issue in RTNDA could be employed in precisely the same way as the fairness doctrine was in Red Lion. Moreover, the FCC itself has recognized that [395 U.S. 367, 396] the applicability of its regulations to situations beyond the scope of past cases may be questionable, 32 Fed. Reg. 10303, 10304 and n. 6, and will not impose sanctions in such cases without warning. We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U.S. 689, 694 (1948), but will deal with those problems if and when they arise. We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials. E. It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government's choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justified. To this there are several answers. Scarcity is not entirely a thing of the past. Advances [395 U.S. 367, 397] in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown apace. 20 Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft and vessels. Conflicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting midair collisions through radio warning devices. 21 "Land mobile services" such as police, ambulance, fire department, public utility, and other communications systems have been occupying an increasingly crowded portion of the frequency spectrum 22 and there are, apart from licensed amateur radio operators' equipment, 5,000,000 transmitters operated on the "citizens' band" which is also increasingly congested. 23 Among the various uses for radio frequency space, including marine, [395 U.S. 367, 398] aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists. Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so congested that at times it has been necessary to suspend new applications. 24 The very high frequency television spectrum is, in the country's major markets, almost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled. 25 [395 U.S. 367, 399] The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorized by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential. 26 This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The [395 U.S. 367, 400] substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled. 27 Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest. In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and [395 U.S. 367, 401] ruling at issue here are both authorized by statute and constitutional. 28 The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion. It is so ordered. Not having heard oral argument in these cases, MR. JUSTICE DOUGLAS took no part in the Court's decision. Footnotes [Footnote î ERRATA: "cacaphony" should be "cacophony". [Footnote 1 Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended, 47 U.S.C. 301 et seq. Section 315 now reads: "315. Candidates for public office; facilities; rules. "(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any - "(1) bona fide newscast, "(2) bona fide news interview, "(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or "(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. "(b) The charges made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the charges made for comparable use of such station for other purposes. "(c) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section." [Footnote 2 According to the record, Hargis asserted that his broadcast included the following statement: "Now, this paperback book by Fred J. Cook is entitled, `GOLDWATER - EXTREMIST ON THE RIGHT.' Who is Cook? Cook was fired from the New York World Telegram after he made a false charge publicly on television against an unnamed official of the New York City government. New York publishers and NEWSWEEK Magazine for December 7, 1959, showed that Fred Cook and his pal, Eugene Gleason, had made up the whole story and this confession was made to New York District Attorney, Frank Hogan. After losing his job, Cook went to work for the left-wing publication, THE NATION, one of the most scurrilous publications of the left which has championed many communist causes over many years. Its editor, Carry McWilliams, has been affiliated with many communist enterprises, scores of which have been cited as subversive by the Attorney General of the U.S. or by other government [395 U.S. 367, 372] agencies . . . . Now, among other things Fred Cook wrote for THE NATION, was an article absolving Alger Hiss of any wrong doing . . . there was a 208 page attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook was on the Central Intelligence Agency . . . now this is the man who wrote the book to smear and destroy Barry Goldwater called `Barry Goldwater - Extremist Of The Right!'" [Footnote 3 The Court of Appeals initially dismissed the petition for want of a reviewable order, later reversing itself en banc upon argument by the Government that the FCC rule used here, which permits it to issue "a declaratory ruling terminating a controversy or removing uncertainty," 47 CFR 1.2, was in fact justified by the Administrative Procedure Act. That Act permits an adjudicating agency, "in its sound discretion, with like effect as in the case of other orders, to issue a declaratory order to terminate a controversy or remove uncertainty." 5, 60 Stat. 239, 5 U.S.C. 1004 (d). In this case, the FCC could have determined the question of Red Lion's liability to a cease-and-desist order or license revocation, 47 U.S.C. 312, for failure to comply with the license's condition that the station be operated "in the public interest," or for failure to obey a requirement of operation in the public interest implicit in the ability of the FCC to revoke licenses for conditions justifying the denial of an initial license, 47 U.S.C. 312 (a) (2), and the statutory requirement that the public interest be served in granting and renewing licenses, 47 U.S.C. 307 (a), (d). Since the FCC could have adjudicated these questions it could, under the Administrative Procedure Act, have issued a declaratory order in the course of its adjudication [395 U.S. 367, 373] which would have been subject to judicial review. Although the FCC did not comply with all of the formalities for an adjudicative proceeding in this case, the petitioner itself adopted as its own the Government's position that this was a reviewable order, waiving any objection it might have had to the procedure of the adjudication. [Footnote 4 Because of this chaos, a series of National Radio Conferences was held between 1922 and 1925, at which it was resolved that regulation of the radio spectrum by the Federal Government was essential and that regulatory power should be utilized to ensure that allocation of this limited resource would be made only to those who would serve the public interest. The 1923 Conference expressed the opinion [395 U.S. 367, 376] that the Radio Communications Act of 1912, 37 Stat. 302, conferred upon the Secretary of Commerce the power to regulate frequencies and hours of operation, but when Secretary Hoover sought to implement this claimed power by penalizing the Zenith Radio Corporation for operating on an unauthorized frequency, the 1912 Act was held not to permit enforcement. United States v. Zenith Radio Corporation, 12 F.2d 614 (D.C. N. D. Ill. 1926). Cf. Hoover v. Intercity Radio Co., 52 App. D.C. 339, 286 F. 1003 (1923) (Secretary had no power to deny licenses, but was empowered to assign frequencies). An opinion issued by the Attorney General at Hoover's request confirmed the impotence of the Secretary under the 1912 Act. 35 Op. Atty. Gen. 126 (1926). Hoover thereafter appealed to the radio industry to regulate itself, but his appeal went largely unheeded. See generally L. Schmeckebier, The Federal Radio Commission 1-14 (1932). [Footnote 5 Congressman White, a sponsor of the bill enacted as the Radio Act of 1927, commented upon the need for new legislation: "We have reached the definite conclusion that the right of all our people to enjoy this means of communication can be preserved only by the repudiation of the idea underlying the 1912 law that anyone who will may transmit and by the assertion in its stead of the doctrine that the right of the public to service is superior to the right of any individual . . . . The recent radio conference met this issue squarely. It recognized that in the present state of scientific development there must be a limitation upon the number of broadcasting stations and it recommended that licenses should be issued only to those stations whose operation would render a benefit to the public, are necessary in the public interest, or would contribute to the development of the art. This principle was approved by every witness before your committee. We have written it into the bill. If enacted into law, the broadcasting privilege will not be a right of selfishness. It will rest upon an assurance of public interest to be served." 67 Cong. Rec. 5479. [Footnote 6 Radio Act of 1927, 4, 44 Stat. 1163. See generally Davis, The Radio Act of 1927, 13 Va. L. Rev. 611 (1927). [Footnote 7 As early as 1930, Senator Dill expressed the view that the Federal Radio Commission had the power to make regulations requiring a licensee to afford an opportunity for presentation of the other side on "public questions." Hearings before the Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., 1616 (1930): "Senator DILL. Then you are suggesting that the provision of the statute that now requires a station to give equal opportunity to candidates for office shall be applied to all public questions? "Commissioner ROBINSON. Of course, I think in the legal concept the law requires it now. I do not see that there is any need to legislate about it. It will evolve one of these days. Somebody will go into court and say, `I am entitled to this opportunity,' and he will get it. "Senator DILL. Has the Commission considered the question of making regulations requiring the stations to do that? "Commissioner ROBINSON. Oh, no. "Senator DILL. It would be within the power of the commission, I think, to make regulations on that subject." [Footnote 8 Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90 (1958); Glidden Co. v. Zdanok, 370 U.S. 530, 541 (1962) (opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE BRENNAN and MR. JUSTICE STEWART). This principle is a venerable one. Alexander v. Alexandria, 5 Cranch 1 (1809); United States v. Freeman, 3 How. 556 (1845); Stockdale v. The Insurance Companies, 20 Wall. 323 (1874). [Footnote 9 Zemel v. Rusk, 381 U.S. 1, 11 -12 (1965); Udall v. Tallman, 380 U.S. 1, 16 -18 (1965); Commissioner v. Sternberger's Estate, 348 U.S. 187, 199 (1955); Hastings & D. R. Co. v. Whitney, 132 U.S. 357, 366 (1889); United States v. Burlington & Missouri River R. Co., 98 U.S. 334, 341 (1879); United States v. Alexander, 12 Wall. 177, 179-181 (1871); Surgett v. Lapice, 8 How. 48, 68 (1850). [Footnote 10 Zemel v. Rusk, 381 U.S. 1, 11 -12 (1965); United States v. Bergh, 352 U.S. 40, 46 -47 (1956); Alstate Construction Co. v. Durkin, 345 U.S. 13, 16 -17 (1953); Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932) [Footnote 11 An attempt to limit sharply the FCC's power to interfere with programming practices failed to emerge from Committee in 1943. S. 814, 78th Cong., 1st Sess. (1943). See Hearings on S. 814 before the Senate Committee on Interstate Commerce, 78th Cong., 1st Sess. (1943). Also, attempts specifically to enact the doctrine failed in the Radio Act of 1927, 67 Cong. Rec. 12505 (1926) (agreeing to amendment proposed by Senator Dill eliminating coverage of "question affecting the public"), and a similar proposal in the Communications Act of 1934 was accepted by the Senate, 78 Cong. Rec. 8854 (1934); see S. Rep. No. 781, 73d Cong., 2d Sess., 8 (1934), but was not included in the bill reported by the House Committee, see H. R. Rep. No. 1850, 73d Cong., 2d Sess. (1934). The attempt which came nearest success was a bill, H. R. 7716, 72d Cong., 1st Sess. (1932), passed by Congress but pocket-vetoed by the President [395 U.S. 367, 382] in 1933, which would have extended "equal opportunities" whenever a public question was to be voted on at an election or by a government agency. H. R. Rep. No. 2106, 72d Cong., 2d Sess., 6 (1933). In any event, unsuccessful attempts at legislation are not the best of guides to legislative intent. Fogarty v. United States, 340 U.S. 8, 13 -14 (1950); United States v. United Mine Workers, 330 U.S. 258, 281 -282 (1947). A review of some of the legislative history over the years, drawing a somewhat different conclusion, is found in Staff Study of the House Committee on Interstate and Foreign Commerce, Legislative History of the Fairness Doctrine, 90th Cong., 2d Sess. (Comm. Print. 1968). This inconclusive history was, of course, superseded by the specific statutory language added in 1959. [Footnote 12 " 326. Censorship. "Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." [Footnote 13 John P. Crommelin, 19 P & F Radio Reg. 1392 (1960). [Footnote 14 The Proxmire amendment read: "[B]ut nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, and panel discussions, all sides of public controversies shall be given as equal an opportunity to be heard as is practically possible." 105 Cong. Rec. 14457. [Footnote 15 The general problems raised by a technology which supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news were discussed at [395 U.S. 367, 387] considerable length by Zechariah Chafee in Government and Mass Communications (1947). Debate on the particular implications of this view for the broadcasting industry has continued unabated. A compendium of views appears in Freedom and Responsibility in Broadcasting (J. Coons ed.) (1961). See also Kalven, Broadcasting, Public Policy and the First Amendment, 10 J. Law & Econ. 15 (1967); M. Ernst, The First Freedom 125-180 (1946); T. Robinson, Radio Networks and the Federal Government, especially at 75-87 (1943). The considerations which the newest technology brings to bear on the particular problem of this litigation are concisely explored by Louis Jaffe in The Fairness Doctrine, Equal Time, Reply to Personal Attacks, and the Local Service Obligation; Implications of Technological Change, Printed for Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce (1968). [Footnote 16 The range of controls which have in fact been imposed over the last 40 years, without giving rise to successful constitutional challenge in this Court, is discussed in W. Emery, Broadcasting and Government: Responsibilities and Regulations (1961); Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). [Footnote 17 This has not prevented vigorous argument from developing on the constitutionality of the ancillary FCC doctrines. Compare Barrow, The Equal Opportunities and Fairness Doctrines in Broadcasting: Pillars in the Forum of Democracy, 37 U. Cin. L. Rev. 447 (1968), with Robinson, The FCC and the First Amendment: Observations [395 U.S. 367, 392] on 40 Years of Radio and Television Regulation, 52 Minn. L. Rev. 67 (1967), and Sullivan, Editorials and Controversy: The Broadcaster's Dilemma, 32 Geo. Wash. L. Rev. 719 (1964). [Footnote 18 The expression of views opposing those which broadcasters permit to be aired in the first place need not be confined solely to the broadcasters themselves as proxies. "Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them." J. Mill, On Liberty 32 (R. McCallum ed. 1947). [Footnote 19 The President of the Columbia Broadcasting System has recently declared that despite the Government, "we are determined to continue covering controversial issues as a public service, and exercising our own independent news judgment and enterprise. I, for one, refuse to allow that judgment and enterprise to be affected by official intimidation." F. Stanton, Keynote Address, Sigma Delta Chi National Convention, Atlanta, Georgia, November 21, 1968. Problems of news coverage from the broadcaster's viewpoint are surveyed in W. Wood, Electronic Journalism (1967). [Footnote 20 Current discussions of the frequency allocation problem appear in Telecommunication Science Panel, Commerce Technical Advisory Board, U.S. Dept. of Commerce, Electromagnetic Spectrum Utilization - The Silent Crisis (1966); Joint Technical Advisory Committee, Institute of Electrical and Electronics Engineers and Electronic Industries Assn., Report on Radio Spectrum Utilization (1964); Note, The Crisis in Electromagnetic Frequency Spectrum Allocation, 53 Iowa L. Rev. 437 (1967). A recently released study is the Final Report of the President's Task Force on Communications Policy (1968). [Footnote 21 Bendix Aviation Corp. v. FCC, 106 U.S. App. D.C. 304, 272 F.2d 533 (1959), cert. denied, 361 U.S. 965 (1960). [Footnote 22 1968 FCC Annual Report 65-69. [Footnote 23 New limitations on these users, who can also lay claim to First Amendment protection, were sustained against First Amendment attack with the comment, "Here is truly a situation where if everybody could say anything, many could say nothing." Lafayette Radio Electronics Corp. v. United States, 345 F.2d 278, 281 (1965). Accord, California Citizens Band Assn. v. United States, 375 F.2d 43 (C. A. 9th Cir.), cert. denied, 389 U.S. 844 (1967). [Footnote 24 Kessler v. FCC, 117 U.S. App. D.C. 130, 326 F.2d 673 (1963). [Footnote 25 In a table prepared by the FCC on the basis of statistics current as of August 31, 1968, VHF and UHF channels allocated to and those available in the top 100 market areas for television are set forth: COMMERCIAL Channels On the Air, Channels Authorized, or Available Market Areas Allocated Applied for Channels VHF UHF VHF UHF VHF UHF Top 10 . . . . . 40 45 40 44 0 1 Top 50 . . . . . 157 163 157 136 0 27 Top 100 . . . . . 264 297 264 213 0 84 NONCOMMERCIAL Channels On the Air, Channels Authorized, or Available Market Areas Reserved Applied for Channels VHF UHF VHF UHF VHF UHF Top 10 . . . . . 7 17 7 16 0 1 Top 50 . . . . . 21 79 20 47 1 32 Top 100. . . . . 35 138 34 69 1 69 1968 FCC Annual Report 132-135. [Footnote 26 RTNDA argues that these regulations should be held invalid for failure of the FCC to make specific findings in the rule-making proceeding relating to these factual questions. Presumably the fairness doctrine and the personal attack decisions themselves, such as Red Lion, should fall for the same reason. But this argument ignores the fact that these regulations are no more than the detailed specification of certain consequences of long-standing rules, the need for which was recognized by the Congress on the factual predicate of scarcity made plain in 1927, recognized by this Court in the 1943 National Broadcasting Co. case, and reaffirmed by the Congress as recently as 1959. "If the number of radio and television stations were not limited by available frequencies, the committee would have no hesitation in removing completely the present provision regarding equal time and urge the right of each broadcaster to follow his own conscience . . . . However, broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust." S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). In light of this history; the opportunity which the broadcasters have had to address the FCC and show that somehow the situation had radically changed, undercutting the validity of the congressional judgment; and their failure to adduce any convincing evidence of that in the record here, we cannot consider the absence of more detailed findings below to be determinative. [Footnote 27 The "airwaves [need not] be filled at the earliest possible moment in all circumstances without due regard for these important factors." Community Broadcasting Co. v. FCC, 107 U.S. App. D.C. 95, 105, 274 F.2d 753, 763 (1960). Accord, enforcing the fairness doctrine, Office of Communication of the United Church of Christ v. FCC, 123 U.S. App. D.C. 328, 343, 359 F.2d 994, 1009 (1966). [Footnote 28 We need not deal with the argument that even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public. Cf. Citizen Publishing Co. v. United States, 394 U.S. 131 (1969). [395 U.S. 367, 402]

liberal

other

first_amendment

1963-050-01

United States Supreme Court U.S. v. WIESENFELD WAREHOUSE CO.(1964) No. 92 Argued: January 16, 1964Decided: February 17, 1964 Appellee, a public storage warehouseman, was charged by criminal information with violations of 301 (k) of the Federal Food, Drug, and Cosmetic Act, which prohibits acts involving defacement of labels of food and other specified articles held for sale after interstate shipment and the "doing of any other act" with respect to such articles which results in their being adulterated or misbranded. Under 402 (a) (4) adulteration is defined to include holding food under insanitary conditions whereby it may have been contaminated with filth. The District Court, construing the statute under the rule of ejusdem generis as applying only to acts of the same general nature as those specifically enumerated with respect to label-defacing and as being too vague to include the mere "holding" of articles, dismissed the information for failure to state an offense. Held: 1. Section 301 (k), as is clear from its wording and legislative history, defines two distinct offenses - one concerning label-defacing and the other concerning adulteration; and the criminal information properly charged an offense for adulteration under the Act. Pp. 89-92. 2. Section 301 (k) is not limited to one holding title to goods and therefore applies to a public storage warehouseman whether he owns the goods stored or not. P. 92. 217 F. Supp. 638, reversed and remanded. Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and William W. Goodrich. James S. Taylor argued the cause for appellee. With him on the brief was Clarence G. Ashby. [376 U.S. 86, 87] MR. JUSTICE STEWART delivered the opinion of the Court. Section 301 (k) of the Federal Food, Drug, and Cosmetic Act prohibits the "alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale . . . after shipment in interstate commerce and results in such article being adulterated or misbranded." 1 Section 402 of the Act provides, among other things, that "[a] food shall be deemed to be adulterated - (a) . . . (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health . . . ." 2 The question presented by this appeal is whether a criminal information which alleges the holding of food by a public storage warehouseman (after interstate shipment and before ultimate sale) under insanitary conditions in a building accessible to rodents, birds and insects, where it may have become contaminated with filth, charges an offense under 301 (k). The Government filed a criminal information containing allegations to this effect 3 in the District Court for [376 U.S. 86, 88] the Middle District of Florida, charging the appellee, a public storage warehouseman, with violations of 301 (k). The court construed 301 (k) as not applying to the mere act of "holding" goods, and dismissed the information for failure to allege an offense under the statute. 217 F. Supp. 638, 639. The order of dismissal was appealed by the Government under the Criminal Appeals Act, which gives this Court jurisdiction to review on direct appeal a judgment dismissing an information on the basis of a "construction of the statute upon which the . . . information is founded." 4 We noted probable jurisdiction. 373 U.S. 921 . For the reasons which follow, we reverse the judgment of the District Court. In arriving at its construction of the statute, the District Court reasoned that 301 (k) "as it is presently written, is too vague and indefinite to apply to the mere act of `holding' goods." 217 F. Supp., at 639. Accordingly, "in an effort to uphold the statute as constitutional," the court applied the rule of ejusdem generis to limit the words "the doing of any other act" in 301 (k) to acts of "the same general nature" as those specifically enumerated in the subsection, i. e., acts relating to the alteration, mutilation, destruction, obliteration, or removal of the labeling of articles. Ibid. We find such reliance on the rule of ejusdem generis misplaced; its application to 301 (k) is contrary to both the text and legislative history [376 U.S. 86, 89] of the subsection, and unnecessary to a constitutionally permissible construction of the statute. The language of 301 (k) unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment. As originally enacted in 1938, the subsection prohibited "[t]he alteration, mutilation, destruction, obliteration, or removal" of the label, or "the doing of any other act" with respect to the product which "results in such article being misbranded." 5 The section was amended in 1948 to prohibit additionally "the doing of any other act" with respect to the product which "results in such article being adulterated." 6 The acts specifically enumerated in the original enactment relate to the offense of misbranding through labeling or the lack thereof. The separate offense of adulteration, on the other hand, is concerned solely with deterioration or contamination of the commodity itself. For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct. Consequently, since the enumerated label-defacing offenses bear no textual or logical relation to the scope of the general language condemning acts of product adulteration, 7 application of the rule of ejusdem generis to limit the words "the doing of [376 U.S. 86, 90] any other act" resulting in product adulteration in 301 (k) to acts of the same general character as those specifically enumerated with respect to misbranding is wholly inappropriate. Moreover, the legislative history makes plain that no such application of the rule was intended. As the House Committee Report on the proposed 1948 amendment unequivocally stated: "It seems clear that under the subsection as now in force the rule of ejusdem generis would not apply in interpreting the words `or the doing of any other act . . .,' and it is even more clear that this rule will not apply in the interpretation of the subsection as amended by this bill." 8 It is equally clear from this legislative history that Congress intended to proscribe the particular conduct charged in the information filed below - the holding of food under insanitary conditions whereby it may have become contaminated. The House Committee Report noted that the amended section would "penalize, among other acts resulting in adulteration or misbranding, the act of holding articles under insanitary conditions whereby they may become contaminated with filth or rendered injurious to health," and emphasized that the Committee intended the amendments to be applied to their fullest constitutional limits. 9 [376 U.S. 86, 91] Congress chose statutory language appropriate to effectuate this purpose. Section 301 (k), as amended, prohibits "any . . . act" which results in adulteration of the product. And food is adulterated if it "has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth." 10 This language defines with particularity an explicit standard of conduct. Section 301 (k), read together with the definition of food adulteration contained in 402 (a) (4), therefore, gives ample warning that the "holding" or storing of food under insanitary conditions whereby it may have become contaminated is prohibited. It is settled law in the area of food and drug regulation that a guilty intent is not always a prerequisite to the imposition of criminal sanctions. Food and drug legislation, concerned as it is with protecting the lives and health of human beings, under circumstances in which they might be unable to protect themselves, often "dispenses with the conventional requirement for criminal conduct - awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250 ." United States v. Dotterweich, 320 U.S. 277, 281 . It is argued, nevertheless, that the Government in this case is seeking to impose criminal sanctions upon one "who is, by the very nature of his business powerless" to protect against this kind of contamination, however high the standard of care exercised. Whatever the truth of this claim, it involves factual proof to be raised defensively at a trial on the merits. We are here concerned only with the construction of the statute as it relates to the sufficiency of the information, and not with the scope and [376 U.S. 86, 92] reach of the statute as applied to such facts as may be developed by evidence adduced at a trial. Finally, the appellee attempts to uphold the dismissal of the information on a ground not relied on by the District Court. The appellee says that it was a bailee of the food, not a seller, and that it was not holding the food for sale within the meaning of 301 (k). Both the language and the purpose of the statute refute this construction. The language of 301 (k) does not limit its application to one holding title to the goods, and since the danger to the public from insanitary storage of food is the same regardless of the proprietary status of the person storing it, the purpose of the legislation - to safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer - would be substantially thwarted by such an unwarranted reading of the statutory language. United States v. Kocmond, 200 F.2d 370, 372; cf. United States v. Sullivan, 332 U.S. 689, 696 ; United States v. Dotterweich, 320 U.S. 277, 282 . Accordingly, we hold that a criminal information charging a public storage warehouseman with holding food (after interstate shipment and before ultimate sale) under insanitary conditions whereby it may have become contaminated with filth, charges an offense under 301 (k) of the Federal Food, Drug, and Cosmetic Act. The order of the District Court dismissing the information is therefore reversed and the case is remanded to that court for further proceedings consistent with this opinion. Reversed and remanded. Footnotes [Footnote 1 52 Stat. 1040, 21 U.S.C. 331 (k). [Footnote 2 52 Stat. 1040, 21 U.S.C. 342 (a) (3) and (4). [Footnote 3 The information was in six counts, the counts differing only with respect to the particular shipment or product involved. Each count charged that appellee had received an article of food which had been shipped in interstate commerce, and that while this food was being held for sale, appellee caused it to be held in a building accessible to rodents, birds, and insects, thus exposing it to contamination, and thereby adulterating the food within the meaning of 402 (a) of the Act, 21 U.S.C. 342 (a), in that the food consisted in part of a filthy [376 U.S. 86, 88] substance, to wit, rodent excreta, insect larvae, etc., and in that it was held under insanitary conditions whereby it might have become contaminated with filth. [Footnote 4 "An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: "From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. . . ." 62 Stat. 844, 18 U.S.C. 3731. [Footnote 5 52 Stat. 1042, 21 U.S.C. 331 (k). See United States v. Sullivan. 332 U.S. 689 . [Footnote 6 62 Stat. 582, 21 U.S.C. 331 (k). [Footnote 7 The House Committee concerned with the proposed amendment to 301 (k) was aware of this textual problem. "The present section 301 (k) forbids, first, certain acts with respect to the labeling of an article, and, second, `any other act with respect to' the article itself which results in its being misbranded. . . . [A]dulteration more often occurs as a result of acts done to or with respect to the article itself. Since the section already contains the broad phrase `any other act with respect to' the article, and since this phrase is not limited by the preceding enumeration of forbidden acts with respect to the labeling, there is no need in making it applicable to adulteration, to change the existing statutory language in this regard." H. R. Rep. No. 807, 80th Cong., 1st Sess., p. 3. [Footnote 8 Id., at pp. 3-4. [Footnote 9 Id., at p. 6. During the Senate hearings on the amendment, the Associate Commissioner of Food and Drugs explained that "under the bill as enacted here, if there was a definite showing of violation on the part of the warehouse which had this material stored, a prosecution of them criminally for doing the act of holding under these insanitary conditions, which result in adulteration could ensue." Hearing before a Subcommittee of the Committee on Interstate and Foreign Commerce, United States Senate, on S. 1190 and H. R. 4071, 80th Cong., 2d Sess., April 17, 1948. [Footnote 10 See note 2, supra. [376 U.S. 86, 93]

liberal

person

economic_activity

1998-074-01

United States Supreme Court WEST, SECRETARY OF VETERANS AFFAIRS v. GIBSON(1999) No. 98-238 Argued: April 26, 1999Decided: June 14, 1999 In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination in the Federal Government, 42 U. S. C. §2000e-16, to authorize the Equal Employment Opportunity Commission (EEOC) to enforce that prohibition through "appropriate remedies, including reinstatement or hiring . . . with or without back pay," §2000e-16(b), and to empower courts to entertain an action by a complainant still aggrieved after final agency action, §2000e-16(c). In 1991, Congress again amended Title VII in the Compensatory Damages Amendment (CDA), which, among other things, permits victims of intentional discrimination to recover compensatory damages "[i]n an action . . . under [§2000e-16],"§1981a(a)(1), and adds that any party in such an action may demand a jury trial, §1981a(c). Thereafter, the EEOC began to grant compensatory damages awards in Federal Government employment discrimination cases. Respondent Gibson filed a complaint charging that the Department of Veterans Affairs had discriminated against him by denying him a promotion on the basis of his gender. The EEOC found in his favor and awarded him the promotion plus backpay. Gibson later filed this suit asking for compensatory damages and other relief, but the District Court dismissed the complaint. The Seventh Circuit reversed, rejecting the Department's argument that, because Gibson had failed to exhaust his administrative remedies with respect to an award of compensatory damages, he could not bring that claim in court. In the Seventh Circuit's view, the EEOC lacked the legal power to award compensatory damages; consequently there was no administrative remedy to exhaust. Held: 1. The EEOC possesses the legal authority to require federal agencies to pay compensatory damages when they discriminate in employment in violation of Title VII. Read literally, the language of the 1972 Title VII extension and the CDA is consistent with a grant of that authority. Section 2000e-16(b) empowers the EEOC to enforce §2000e-16(a) through a "remedy" that is "appropriate." Although §2000e-16(b) explicitly mentions only equitable remedies--reinstatement, hiring, and backpay--the preceding word "including" makes clear that the authorization is not limited to the remedies specified. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189 . The 1972 Title VII extension's choice of examples is not surprising, for in 1972 (and until the 1991 CDA) Title VII itself authorized only equitable remedies. Words in statutes can enlarge or contract their scope as required by other changes in the law or the world. See, e.g. , Browder v. United States, 312 U.S. 335 , 339-340. The meaning of the word "appropriate" permits its scope to expand to include Title VII remedies that were not appropriate before 1991, but in light of legal change wrought by the 1991 CDA are appropriate now. Examining the purposes of the 1972 Title VII extension shows that this is the correct reading. Section 717's general purpose is to remedy discrimination in federal employment by creating a system that requires resort to administrative relief prior to court action to encourage quicker, less formal, and less expensive resolution of disputes. To deny that an EEOC compensatory damages award is, statutorily speaking, "appropriate" would undermine this remedial scheme. This point is reinforced by the CDA's history, which says nothing about limiting the EEOC's ability to use the new damages remedy or in any way suggests that it would be desirable to distinguish the new Title VII remedy from the old ones. Respondent's arguments in favor of depriving the EEOC of the power to award compensatory damages--that the CDA's reference to an "action" refers to a judicial case, not to an administrative proceeding; that an EEOC compensatory damages award would not involve a jury trial, as authorized by the CDA; and that any waiver of the Government's sovereign immunity to permit the EEOC to award compensatory damages must be construed narrowly--are unconvincing. Pp. 4-10. 2. Respondent's claims that he can proceed in District Court on alternative grounds include matters that fall outside the scope of the question presented in the Government's petition for certiorari. The case is remanded so that the Court of Appeals can determine whether these questions have been properly raised and, if so, decide them. Pp. 10-11. 137 F. 3d 992, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia and Thomas, JJ., joined. TOGO D. WEST, J r. , SECRETARY OF VETERANS AFFAIRS, PETITIONER v. MICHAEL GIBSON on writ of certiorari to the united states court of appeals for the seventh circuit [June 14, 1999] Justice Breyer delivered the opinion of the Court. The question in this case is whether the Equal Employment Opportunity Commission (EEOC) possesses the legal authority to require federal agencies to pay compensatory damages when they discriminate in employment in violation of Title VII of the Civil Rights Act of 1964, 84 Stat. 121, 42 U.S.C. §2000e et seq. We conclude that the EEOC does have that authority. I A Title VII of the Civil Rights Act of 1964 forbids employment discrimination. In 1972 Congress extended Title VII so that it applies not only to employment in the private sector, but to employment in the Federal Government as well. See Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U.S.C. §2000e-16. This 1972 Title VII extension, found in §717 of Title VII, has three relevant subsections. The first subsection, §717(a), sets forth the basic Federal Government employment anti-discrimination standard. It says that "[a]ll personnel actions affecting employees or applicants for employment [of specified Government agencies and departments] ... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. §2000e-16(a). The second subsection, §717(b), provides the EEOC with the power to enforce the standard. It says (among other things) that "the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) . . . through appropriate remedies , including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section ...." 42 U.S.C. §2000e-16(b) (emphasis added). The third subsection, §717(c), concerns a court's authority to enforce the standard. It says that, after an agency or the EEOC takes final action on a complaint (or fails to take action within a certain time), "an employee or applicant ... [who is still] aggrieved ... may file a civil action as provided in section [706, dealing with discrimination by private employers] ..., in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. §2000e-16(c). In 1991 Congress again amended Title VII. The amendment relevant here permits victims of intentional employment discrimination (whether within the private sector or the Federal Government) to recover compensatory damages. See Civil Rights Act of 1991, 105 Stat. 1072, 42 U.S.C. §1981a(a)(1). The relevant portion of that amendment, which we shall call the Compensatory Damages Amendment (CDA), says: "In an action brought by a complaining party under section 706 [dealing with discrimination by private employers] or 717 [dealing with discrimination by the Federal Government] against a respondent who engaged in unlawful intentional discrimination ..., the complaining party may recover compensatory ... damages ...." 42 U.S.C. §1981a(a)(1). The CDA also sets forth certain conditions and exceptions. It imposes, for example, a cap on compensatory damages (of up to $300,000 for large employers, §1981a(b)(3)(D)). And it adds: "If a complaining party seeks compensatory ... damages under this section ... any party may demand a trial by jury ...." §1981a(c). Once the CDA became law, the EEOC began to grant compensatory damages awards in Federal Government employment discrimination cases. Compare 29 CFR pt. 1613, App. A (1990) (no reference to compensatory damages in preamendment list of EEOC remedies), with, e.g. , Jackson v. Runyon , EEOC Appeal No. 01923399, p.3 (Nov. 12, 1992) ("[T]he Civil Rights Act of 1991 ... makes compensatory damages available to federal sector complainants in the administrative process"). B Respondent, Michael Gibson, filed a complaint with the Department of Veterans Affairs charging that the Department had discriminated against him by denying him a promotion on the basis of his gender. The Department found against Gibson. The EEOC, however, subsequently found in Gibson's favor and awarded the promotion plus backpay. Three months later Gibson filed a complaint in Federal District Court, asking the court to order the Department to comply immediately with the EEOC's order and also to pay compensatory damages. Complaint ¶ ;17 (App. 28). The Department then voluntarily complied with the EEOC's order, but it continued to oppose Gibson's claim for compensatory damages. Eventually, the District Court dismissed Gibson's compensatory damages claim. On appeal, the Department supported the District Court's dismissal with the argument that Gibson had failed to exhaust his administrative remedies in respect to his compensatory damages claim; hence, he could not bring that claim in court. Gibson v. Brown, 137 F.3d 992, 994 (CA7 1998). The Seventh Circuit, however, reversed the District Court's dismissal. It rejected the Department's argument because, in its view, the EEOC lacked the legal power to award compensatory damages; consequently there was no administrative remedy to exhaust. Id. , at 995-998. Because the circuits have disagreed about whether the EEOC has the power to award compensatory damages, compare Fitzgerald v. Secretary, Dept. of Veterans Affairs , 121 F.3d 203, 207 (CA5 1997) (EEOC may award compensatory damages), with Crawford v. Babbitt , 148 F.3d 1318, 1326 (CA11 1998) (EEOC cannot award compensatory damages), and 137 F.3d, at 996-998 (same), we granted certiorari in order to decide that question. II The language, purposes, and history of the 1972 Title VII extension and the 1991 CDA convince us that Congress has authorized the EEOC to award compensatory damages in Federal Government employment discrimination cases. Read literally, the language of the statutes is consistent with a grant of that authority. The relevant portion of the Title VII extension, namely, §717(b), says that the EEOC "shall have authority" to enforce §717(a) "through appropriate remedies, including reinstatement or hiring of employees with or without back pay." 42 U.S.C. §2000e-16(b). After enactment of the 1991 CDA, an award of compensatory damages is a "remedy" that is "appropriate." We recognize that subsection 717(b) explicitly mentions certain equitable remedies, namely, reinstatement, hiring, and back pay, and it does not explicitly refer to compensatory damages. But the preceding word "including" makes clear that the authorization is not limited to the specified remedies there mentioned; and the 1972 Title VII extension's choice of examples is not surprising, for in 1972 (and until 1991) Title VII itself authorized only equitable remedies. See Civil Rights Act of 1964, 78 Stat. 261, 42 U.S.C. §2000e-5(g)) (private sector discrimination); Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U.S.C. 2000e-16 (federal sector discrimination). Section 717's language, however, does not freeze the scope of the word "appropriate" as of 1972. Words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic. See, e.g. , Browder v. United States, 312 U.S. 335, 339-340 (1941) (new, unforeseen "use" of passport); see also United States v. Southwestern Cable Co., 392 U.S. 157, 172-173 (1968) (cable television as "communications"); Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395-396 (1968) (old statutory language read to reflect technological change). The meaning of the word "appropriate" permits its scope to expand to include Title VII remedies that were not appropriate before 1991, but in light of legal change are appropriate now. The word "including" makes clear that "appropriate remedies" are not limited to the examples that follow that word. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189 (1941). And in context the word "appropriate" most naturally refers to forms of relief that Title VII itself authorizes--at least where that relief is of a kind that agencies typically can provide. Thus, Congress' decision in the 1991 CDA to permit a "complaining party" to "recover compensatory damages" in "an action brought under section ... 717," by adding compensatory damages to Title VII's arsenal of remedies, could make that form of relief "appropriate" under §717(b) as well. An examination of the purposes of the 1972 Title VII extension shows that this permissible reading of the language is also the correct reading. Section 717's general purpose is to remedy discrimination in federal employment. It does so in part by creating a dispute resolution system that requires a complaining party to pursue administrative relief prior to court action, thereby encouraging quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court. See 42 U.S.C. §2000e-16(c) (court action permitted only where complainant disagrees with final agency disposition or, if complainant pursued discretionary appeal to EEOC, with EEOC disposition; or if either agency or EEOC disposition is delayed); Brown v. GSA, 425 U.S. 820, 833 (1976) (discussing §717's "rigorous administrative exhaustion requirements"); see also 29 CFR §1614.105(a) (1998) (requiring complainant initially to notify agency and make effort to resolve matter informally); §1614.106(d)(2) (requiring agency investigation prior to EEOC consideration). To deny that an EEOC compensatory damages award is, statutorily speaking, "appropriate" would undermine this remedial scheme. It would force into court matters that the EEOC might otherwise have resolved. And by preventing earlier resolution of a dispute, it would increase the burdens of both time and expense that accompany efforts to resolve hundreds, if not thousands, of such disputes each year. See Equal Employment Opportunity Commission, Federal Sector Report on EEO Complaints Processing and Appeals by Federal Agencies for Fiscal Year 1997, pp. 19, 61 (1998) (28,947 Federal Government employment discrimination claims filed in 1997; 7,112 claims appealed to EEOC); Reply Brief for Petitioner 12-13, n.9 (estimating "hundreds" of cases each year that involve claims for compensatory damages). The history of the CDA reinforces this point. The CDA's sponsors and supporters spoke frequently of the need to create a new remedy in order, for example, to "help make victims whole." H.R. Rep. No.102-40, pt.1, pp. 64-65 (1991); see also Civil Rights Act of 1991, §2, 105 Stat. 1071, 42 U.S.C. §1981 note (congressional finding that "additional remedies under Federal law are needed to deter ... intentional discrimination in the workplace"); id. , §3 (one purpose of Act is "to provide appropriate remedies for intentional discrimination ... in the workplace"); 137 Cong. Rec. 28636-28638, 28663-28667, 28676-28680 (1991) (introduction and discussion of Danforth/Kennedy Amendment No.1274, in relevant part permitting recovery of compensatory damages); id., at 28880-28881 (statements of Sen. Warner and Sen. Kennedy) (clarifying that Danforth/Kennedy amendment covers federal employees and suggesting amendment to this effect). But the CDA's sponsors and supporters said nothing about limiting the EEOC's ability to use the new Title VII remedy or suggesting that it would be desirable to distinguish the new Title VII remedy from old Title VII remedies in that respect. This total silence is not surprising. What reason could there be for Congress, anxious to have the EEOC consider as a preliminary matter every other possible remedy, not to want the EEOC similarly to consider compensatory damages as well? Respondent makes three important arguments in favor of a more limited interpretation of the statutes--an interpretation that would deprive the EEOC of the power to award compensatory damages. First, respondent points out that the CDA says nothing about the EEOC, or EEOC proceedings, but rather states only that a complaining party may recover compensatory damages "in an action brought under section ... 717." 42 U.S.C. §1981a(a)(1) (emphasis added). And the word "action" often refers to judicial cases, not to administrative "proceedings." See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-62 (1980) (distinguishing civil "actions" from administrative "proceedings"). Had Congress thought it important so to limit the scope of the CDA, however, it could easily have cross-referenced §717(c), the civil action subsection itself, rather than cross-referencing the whole of §717, which includes authorization for the EEOC to enforce the section through "appropriate remedies." Regardless, the question, as we see it, is whether, by using the word "action," Congress intended to deny that compensatory damages is " appropriate " administrative relief within the terms of §717(b). In light of the previous discussion, see supra , at 4-7, we do not believe the simple use of the word "action" in the context of a cross-reference to the whole of §717 indicates an intent to deprive the EEOC of that authority. Second, in an effort to explain why Congress might have wanted to impose a special EEOC-related limitation in respect to compensatory damages, respondent points to the language in the CDA that says: "If a complaining party seeks compensatory ... damages under this section ... any party may demand a trial by jury." 42 U.S.C. §1981a(c) (emphasis added). Respondent notes that an EEOC compensatory damages award would not involve a jury. And an agency cannot proceed to court under §717(c) because that subsection makes a court action available only to an aggrieved complaining party, not to the agency. §2000e-16(c). Thus, respondent concludes that the CDA must implicitly forbid any such EEOC award, for that award would take place without the jury trial that §1981a(c) guarantees. This argument, however, draws too much from too little. One easily can read the jury trial provision in §1981a(c) as simply guaranteeing either party a jury trial in respect to compensatory damages if a complaining party proceeds to court under §717(c). The words "under this section" in §1981a(c) support that interpretation, for "this section," §1981a, refers primarily to court proceedings. And there is no reason to believe Congress intended more. The history of the jury trial provision suggests that Congress saw the provision primarily as a benefit to complaining parties, not to the Government. See, e.g. , 137 Cong. Rec., at 29051-29052 (statement of Sen. Leahy) (for "the first time, women and the disabled could recover damages and have jury trials for claims of intentional discrimination"); id. , at 30668 (statement of Rep. Ford) (provision will "provid[e] all victims of intentional discrimination a right to trial by jury"); see also, e.g. , id., at 29053-29054 (statement of Sen. Wallop) (discussing "economically devastating lawsuits"); id. , at 29041 (statement of Sen. Bumpers) (relating fears about "runaway jur[ies]"). The fact that Congress permits an employee to file a complaint in court, but forbids the agency to challenge an adverse EEOC decision in court, also suggests that Congress was not inordinately and unusually concerned with invoking special judicial safeguards to protect the Government. Finally, respondent argues that insofar as the law permits the EEOC to award compensatory damages, it waives the Government's sovereign immunity, and we must construe any such waiver narrowly. See Lane v. Peña, 518 U.S. 187, 192 (1996); Lehman v. Nakshian, 453 U.S. 156, 160-161 (1981). There is no dispute, however, that the CDA waives sovereign immunity in respect to an award of compensatory damages. Whether, in light of that waiver, the CDA permits the EEOC to consider the same matter at an earlier phase of the employment discrimination claim is a distinct question concerning how the waived damages remedy is to be administered. Because the relationship of this kind of administrative question to the goals and purposes of the doctrine of sovereign immunity may be unclear, ordinary sovereign immunity presumptions may not apply. In the Government's view here, for example, the EEOC's preliminary consideration, by lowering the costs of resolving disputes, does not threaten, but helps to protect, the public fisc. Regardless, if we must apply a specially strict standard in such a case, which question we need not decide, that standard is met here. We believe that the statutory language, taken together with statutory purposes, history, and the absence of any convincing reason for denying the EEOC the relevant power, produce evidence of a waiver that satisfies the stricter standard. For these reasons, we conclude that the EEOC possesses the legal authority to enforce §717 through an award of compensatory damages. III Respondent asks us to affirm on alternative grounds the Seventh Circuit's judgment permitting his case to proceed in the District Court. The Seventh Circuit considered whether Gibson had "asked the EEOC for compensatory damages." 137 F.3d, at 994. It added that if "he did, then the government's failure-to-exhaust argument obviously is a non-starter." Ibid. But the Court of Appeals concluded that Gibson did not "put the EEOC on notice that he was seeking compensatory damages." Ibid. Respondent claims that he can proceed in District Court because he did satisfy the law's exhaustion requirements, even if the EEOC has the legal power to award compensatory damages and even if he did not give notice to the EEOC that he sought compensatory damages. He argues that is so because (1) the requirement of notice for exhaustion purposes is unusually weak in respect to compensatory damages, (2) he did request a "monetary cash award," and (3) special circumstances estop the Government from asserting a "no exhaustion" claim in this case. These matters fall outside the scope of the question presented in the Government's petition for certiorari. See Roberts v. Galen of Va., Inc. , 525 U.S. ___, ___ (1999) (per curiam) . We remand the case so that the Court of Appeals can determine whether these questions have been properly raised and, if so, decide them. * * * The decision of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. TOGO D. WEST, J r. , SECRETARY OF VETERANS AFFAIRS, PETITIONER v. MICHAEL GIBSON on writ of certiorari to the united states court of appeals for the seventh circuit [June 14, 1999] Justice Kennedy , with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. The rules governing this case are clear and well established, or at least had been before the majority's unsettling opinion today. Relief may not be awarded against the United States unless it has waived its sovereign immunity. See Department of Army v. Blue Fox, Inc., 525 U.S. ___ (1999). The waiver must be expressed in unequivocal statutory text and cannot be implied. Id., at ___ (Slip op., at 4); Lane v. Peña, 518 U.S. 187, 192 (1996). Even when the United States has waived its immunity, the waiver must be "strictly construed, in terms of its scope, in favor of the sovereign," Blue Fox, supra, at ___ (Slip op., at 5); accord, Lane, supra, at 192, for "`this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied,'" Lehman v. Nakshian, 453 U.S. 156, 161 (1981), quoting Soriano v. United States, 352 U.S. 270, 276 (1957). Not only do these rules reserve authority over the public fisc to the branch of Government with which the Constitution has placed it, they also form an important part of the background of settled legal principles upon which Congress relied in enacting various statutes authorizing suits against the United States, such as the Tucker Act, 28 U.S.C. §1491; §10(a) of the Administrative Procedure Act, 5 U.S.C. §702; and the Federal Tort Claims Act, 28 U.S.C. §2671 et seq . The rules governing waivers of sovereign immunity make clear that the Equal Employment Opportunity Commission (EEOC) may not award or authorize compensatory damages against the United States unless it is permitted to do so by a statutory provision which waives the United States' immunity to the awards in clear and unambiguous terms. Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16(b), which authorizes the EEOC to enforce federal compliance with Title VII "through appropriate remedies, including reinstatement or hiring of employees with or without back pay," effects a waiver of the United States' sovereign immunity for some purposes. Unlike other similar statutes, however, the provision does not mention awards of compensatory damages. Compare §717(b) with 2 U.S.C. §§1311(b)(1)(B), 1405(g) (1994 ed., Supp. III). A waiver of immunity to other types of relief does not provide the unequivocal statement required to establish a waiver of immunity to damages awards. See United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) ("Though [11 U.S.C. §106(c)], too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims"); Lane, supra, at 192. Nor does the statutory grant of authority to the EEOC to enforce Title VII through appropriate remedies include, in unequivocal terms or even by necessary implication, the power to award or authorize compensatory damages. Even if the phrase "appropriate remedies" had been intended, as the majority maintains, to incorporate relief authorized for violations of Title VII under other statutory provisions, it is not obvious that the phrase's meaning would have been intended also to "expand" to include remedies that were not available at the time §717 was adopted. Ante, at 5. It is far from clear, moreover, that the phrase was intended to incorporate other statutory provisions at all. Unlike other subsections of §717, see §717(d) (incorporating various provisions relating to judicial actions), §717(b) does not make an explicit reference to other statutory provisions. In addition, the specific examples given by the statute of appropriate remedies--reinstatement or hiring of employees with or without backpay--are equitable in nature. See United States v. Burke, 504 U.S. 229, 238 (1992). The interpretive canons of noscitur a sociis and ejusdem generis suggest the appropriate remedies authorized by §717(b) are remedies of the same nature as reinstatement, hiring, and backpay-- i.e., equitable remedies. The phrase "appropriate remedies," furthermore, connotes the remedial discretion which is the hallmark of equity. A plausible, and perhaps even the best, interpretation of §717(b), then, is that it grants administrative authority to determine which of the traditional forms of equitable relief are appropriate in any given case of discrimination. Whether or not this is the better reading, it should suffice to establish beyond dispute that the statute does not authorize awards of compensatory damages in express and unequivocal terms. As a consequence, §717(b) cannot provide the required waiver of the United States' sovereign immunity. Unlike §717(b), 42 U.S.C. §1981a does authorize awards of compensatory damages against the United States. Although it is clear the statute authorizes courts to award damages, however, §1981a does not so much as mention the EEOC, much less empower it to award or authorize money damages. It is settled law that a waiver of sovereign immunity in one forum does not effect a waiver in other forums. See, e.g., McElrath v. United States, 102 U.S. 426, 440 (1880) ("[The Government] can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits"); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 , n. 6 (1944) ("The Federal Government's consent to suit against itself, without more, in a field of federal power does not authorize a suit in a state court"); Case v. Terrell, 11 Wall. 199, 201 (1871) (The United States' consent to suit in the Court of Claims does not extend to other federal courts). The majority's attempt to read 42 U.S.C. §1981a(a)(1) to authorize administrative awards of compensatory damages is not persuasive. Section 1981a(a)(1) provides: "In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 ... the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964 ...." The provision authorizes an award of compensatory damages in an "action" brought under §717; the word "action" is often used to distinguish judicial cases from administrative "proceedings." See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-62 (1980). Unlike §717(b), which authorizes administrative proceedings, §717(c) authorizes "civil action[s]" in court. It is most natural, therefore, to understand the phrase "an action brought by a complaining party under section ... 717" as a reference to a judicial action under §717(c) but not to an administrative proceeding under §717(b). Compensatory awards are authorized under §1981a(a)(1), moreover, "in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964." Section 706(g) authorizes a "court" to grant equitable relief for violations of Title VII. This provision, as incorporated through §717(d), applies only in "civil actions" brought under §717(c); it does not apply in proceedings before the EEOC or any other agency. Section 1981a(a)(1)'s express reference to §706(g) confirms that compensatory damages are available only in judicial actions. Other provisions of §1981a also make clear that the statute authorizes compensatory damages only in judicial actions. Section 1981a(c) provides that "[i]f a complaining party seeks compensatory ... damages under this section--(1) any party may demand a trial by jury; and (2) the court shall not inform the jury of the limitations [on damages awards] described in subsection (b)(3) of this section." It cannot be disputed that this provision contemplates a jury trial overseen by a court. With due respect to the majority, the provision does not guarantee a jury trial to either party " if a complaining party proceeds to court under §717(c)," ante, at 8-9; it provides that either party may obtain a jury trial "[i]f a complaining party seeks compensatory ... damages," §1981a(c). While falling short of embracing the argument as its own, the majority flirts with the contention that allowing agencies rather than juries to award compensatory damages lowers the costs of resolving employment disputes and protects the public fisc. It is not clear to me that juries would be less protective of the fisc than would one group of Government employees who deem themselves empowered by agency interpretation to award Government funds to fellow employees. When a Government employee seeks damages from the Government itself, there may be advantages in insisting upon the expertise of a trial court with experience in awarding damages in all types of cases, with the additional safeguards of trial in a forum of high visibility, trial by jury if either party chooses to ask for it, and appellate review. These factors are disregarded by the majority, which seems instead to suggest that the nature and convenience of administrative proceedings will by necessity provide a financial advantage to the Government. In all events, speculation does not suffice to overcome the rule that waivers of sovereign immunity must be clear and express. An unequivocal waiver of the United States' sovereign immunity to administrative awards of compensatory damages cannot be found in the relevant statutory provisions. To the extent the majority relies on textual analysis, it establishes at most (if at all) that the statutes might be read to authorize such awards, not that that the statutes must be so read. To the extent the majority relies on legislative history and other extratextual sources, it contradicts our precedents and sets us on a new course, for before today it was well settled that "[a] statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text." Lane, 518 U.S., at 192 ; accord, Nordic Village, 503 U.S., at 37 ("[T]he `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report"). With respect, I dissent.

liberal

person

civil_rights

2001-016-01

United States Supreme Court EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC.(2002) No. 99-1823 Argued: October 10, 2001Decided: January 15, 2002 Respondent's employees must each sign an agreement requiring employment disputes to be settled by binding arbitration. After Eric Baker suffered a seizure and was fired by respondent, he filed a timely discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging that his discharge violated Title I of the Americans with Disabilities Act of 1990 (ADA). The EEOC subsequently filed this enforcement suit, to which Baker is not a party, alleging that respondent's employment practices, including Baker's discharge "because of his disability," violated the ADA and that the violation was intentional and done with malice or reckless indifference. The complaint requested injunctive relief to "eradicate the effects of [respondent's] past and present unlawful employment practices"; specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages; and punitive damages for malicious and reckless conduct. Respondent petitioned under the Federal Arbitration Act (FAA) to stay the EEOC's suit and compel arbitration, or to dismiss the action, but the District Court denied relief. The Fourth Circuit concluded that the arbitration agreement between Baker and respondent did not foreclose the enforcement action because the EEOC was not a party to the contract, but had independent statutory authority to bring suit in any federal district court where venue was proper. Nevertheless, the court held that the EEOC was limited to injunctive relief and precluded from seeking victim-specific relief because the FAA policy favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court when it seeks primarily to vindicate private, rather than public, interests. Held:An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action. Pp.5-18. (a)The ADA directs the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when enforcing the ADA's prohibitions against employment discrimination on the basis of disability. Following the 1991 amendments to Title VII, the EEOC has authority to bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages, in both Title VII and ADA actions. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it seeks here if it can prove its case against respondent. Neither the statutes nor this Court's cases suggest that the existence of an arbitration agreement between private parties materially changes the EEOC's statutory function or the remedies otherwise available. Pp.5-8. (b)Despite the FAA policy favoring arbitration agreements, nothing in the FAA authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of a judicial forum. Pp.8-9. (c)The Fourth Circuit based its decision on its evaluation of the "competing policies" implemented by the ADA and the FAA, rather than on any language in either the statutes or the arbitration agreement between Baker and respondent. If the EEOC could prosecute its claim only with Baker's consent, or if its prayer for relief could be dictated by Baker, the lower court's analysis might be persuasive. But once a charge is filed, the exact opposite is true under the ADA, which clearly makes the EEOC the master of its own case, conferring on it the authority to evaluate the strength of the public interest at stake and to determine whether public resources should be committed to the recovery of victim-specific relief. Moreover, the Court of Appeals' attempt to balance policy goals against the arbitration agreement's clear language is inconsistent with this Court's cases holding that the FAA does not require parties to arbitrate when they have not agreed to do so. E.g., Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478. Because the EEOC is not a party to the contract and has not agreed to arbitrate its claims, the FAA's proarbitration policy goals do not require the agency to relinquish its statutory authority to pursue victim-specific relief, regardless of the forum that the employer and employee have chosen to resolve their disputes. Pp.9-16. (d)Although an employee's conduct may effectively limit the relief the EEOC can obtain in court if, for example, the employee fails to mitigate damages or accepts a monetary settlement, see, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232, Baker has not sought arbitration, nor is there any indication that he has entered into settlement negotiations with respondent. The fact that ordinary principles of res judicata, mootness, or mitigation may apply to EEOC claims does not mean the EEOC's claim is merely derivative. This Court has recognized several situations in which the EEOC does not stand in the employee's shoes, see, e.g., Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368, and, in this context, the statute specifically grants the EEOC exclusive authority over the choice of forum and the prayer for relief once a charge has been filed. Pp.16-18. 193 F.3d 805, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia, J., joined. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,PETITIONER v. WAFFLE HOUSE, INC. on writ of certiorari to the united states court ofappeals for the fourth circuit [January 15, 2002] Justice Stevens delivered the opinion of the Court. The question presented is whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U.S.C. §12101 et seq. (1994 ed. and Supp. V). I In his application for employment with respondent, Eric Baker agreed that "any dispute or claim" concerning his employment would be "settled by binding arbitration."1 As a condition of employment, all prospective Waffle House employees are required to sign an application containing a similar mandatory arbitration agreement. See App. 56. Baker began working as a grill operator at one of respondent's restaurants on August 10, 1994. Sixteen days later he suffered a seizure at work and soon thereafter was discharged. Id., at 43-44. Baker did not initiate arbitration proceedings, nor has he in the seven years since his termination, but he did file a timely charge of discrimination with the EEOC alleging that his discharge violated the ADA. After an investigation and an unsuccessful attempt to conciliate, the EEOC filed an enforcement action against respondent in the Federal District Court for the District of South Carolina,2 pursuant to §107(a) of the ADA, 42 U.S.C. §12117(a) (1994 ed.), and §102 of the Civil Rights Act of 1991, as added, 105 Stat. 1072, 42 U.S.C. §1981a (1994 ed.). Baker is not a party to the case. The EEOC's complaint alleged that respondent engaged in employment practices that violated the ADA, including its discharge of Baker "because of his disability," and that its violation was intentional, and "done with malice or with reckless indifference to [his] federally protected rights." The complaint requested the court to grant injunctive relief to "eradicate the effects of [respondent's] past and present unlawful employment practices," to order specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages, and to award punitive damages for malicious and reckless conduct. App. 38-40. Respondent filed a petition under the Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq., to stay the EEOC's suit and compel arbitration, or to dismiss the action. Based on a factual determination that Baker's actual employment contract had not included the arbitration provision, the District Court denied the motion. The Court of Appeals granted an interlocutory appeal and held that a valid, enforceable arbitration agreement between Baker and respondent did exist. 193 F.3d 805, 808 (CA4 1999). The court then proceeded to consider "what effect, if any, the binding arbitration agreement between Baker and Waffle House has on the EEOC, which filed this action in its own name both in the public interest and on behalf of Baker." Id., at 809. After reviewing the relevant statutes and the language of the contract, the court concluded that the agreement did not foreclose the enforcement action because the EEOC was not a party to the contract, and it has independent statutory authority to bring suit in any federal district court where venue is proper. Id., at 809-812. Nevertheless, the court held that the EEOC was precluded from seeking victim-specific relief in court because the policy goals expressed in the FAA required giving some effect to Baker's arbitration agreement. The majority explained: "When the EEOC seeks `make-whole' relief for a charging party, the federal policy favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court because in that circumstance, the EEOC's public interest is minimal, as the EEOC seeks primarily to vindicate private, rather than public, interests. On the other hand, when the EEOC is pursuing large-scale injunctive relief, the balance tips in favor of EEOC enforcement efforts in federal court because the public interest dominates the EEOC's action." Id., at 812.3 Therefore, according to the Court of Appeals, when an employee has signed a mandatory arbitration agreement, the EEOC's remedies in an enforcement action are limited to injunctive relief. Several Courts of Appeals have considered this issue and reached conflicting conclusions. Compare EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (CA6 1999) (employee's agreement to arbitrate does not affect the EEOC's independent statutory authority to pursue an enforcement action for injunctive relief, backpay, and damages in federal court), with EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (CA2 1998) (allowing the EEOC to pursue injunctive relief in federal court, but precluding monetary relief); Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. Nixon, 210 F.3d 814 (CA8), cert. denied, 531 U.S. 958 (2000) (same). We granted the EEOC's petition for certiorari to resolve this conflict, 532 U.S. 941 (2001), and now reverse. II Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when it is enforcing the ADA's prohibitions against employment discrimination on the basis of disability. 42 U.S.C. §12117(a) (1994 ed.).4 Accordingly, the provisions of Title VII defining the EEOC's authority provide the starting point for our analysis. When Title VII was enacted in 1964, it authorized private actions by individual employees and public actions by the Attorney General in cases involving a "pattern or practice" of discrimination. 42 U.S.C. §2000e-6(a) (1994 ed.). The EEOC, however, merely had the authority to investigate and, if possible, to conciliate charges of discrimination. See General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 325 (1980). In 1972, Congress amended Title VII to authorize the EEOC to bring its own enforcement actions; indeed, we have observed that the 1972 amendments created a system in which the EEOC was intended "to bear the primary burden of litigation," id., at 326. Those amendments authorize the courts to enjoin employers from engaging in unlawful employment practices, and to order appropriate affirmative action, which may include reinstatement, with or without backpay.5 Moreover, the amendments specify the judicial districts in which such actions may be brought.6 They do not mention arbitration proceedings. In 1991, Congress again amended Title VII to allow the recovery of compensatory and punitive damages by a "complaining party." 42 U.S.C. §1981a(a)(1) (1994 ed.). The term includes both private plaintiffs and the EEOC, §1981a(d)(1)(A), and the amendments apply to ADA claims as well, §§1981a(a)(2), (d)(1)(B). As a complaining party, the EEOC may bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent. Prior to the 1991 amendments, we recognized the difference between the EEOC's enforcement role and an individual employee's private cause of action in Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977), and General Telephone, supra. Occidental presented the question whether EEOC enforcement actions are subject to the same statutes of limitations that govern individuals' claims. After engaging in an unsuccessful conciliation process, the EEOC filed suit in Federal District Court, on behalf of a female employee, alleging sex discrimination. The court granted the defendant's motion for summary judgment on the ground that the EEOC's claim was time barred; the EEOC filed suit after California's 1-year statute of limitations had run. We reversed because "under the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties," 432 U.S., at 368. To hold otherwise would have undermined the agency's independent statutory responsibility to investigate and conciliate claims by subjecting the EEOC to inconsistent limitations periods. In General Telephone, the EEOC sought to bring a discrimination claim on behalf of all female employees at General Telephone's facilities in four States, without being certified as the class representative under Federal Rule of Civil Procedure23. 446 U.S., at 321-322. Relying on the plain language of Title VII and the legislative intent behind the 1972 amendments, we held that the EEOC was not required to comply with Rule 23 because it "need look no further than §706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." Id., at 324. In light of the provisions granting the EEOC exclusive jurisdiction over the claim for 180 days after the employee files a charge, we concluded that "the EEOC is not merely a proxy for the victims of discrimination and that [its] enforcement suits should not be considered representative actions subject to Rule 23." Id., at 326. Against the backdrop of our decisions in Occidental and General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages. There is no language in the statute or in either of these cases suggesting that the existence of an arbitration agreement between private parties materially changes the EEOC's statutory function or the remedies that are otherwise available. III The FAA was enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. It has not been amended since the enactment of Title VII in 1964. As we have explained, its "purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements on the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). The FAA broadly provides that a written provision in "a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. §2. Employment contracts, except for those covering workers engaged in transportation, are covered by the Act. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). The FAA provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, and for orders compelling arbitration when one party has failed or refused to comply with an arbitration agreement. See 9 U.S.C. §§3 and 4. We have read these provisions to "manifest a `liberal federal policy favoring arbitration agreements.' " Gilmer, 460 U.S. 1, 24 (1983)). Absent some ambiguity in the agreement, however, it is the language of the contract that defines the scope of disputes subject to arbitration. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995) ("[T]he FAA's proarbitration policy does not operate without regard to the wishes of the contracting parties"). For nothing in the statute authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of a judicial forum. IV The Court of Appeals based its decision on its evaluation of the "competing policies" implemented by the ADA and the FAA, rather than on any language in the text of either the statutes or the arbitration agreement between Baker and respondent. 193 F.3d, at 812. It recognized that the EEOC never agreed to arbitrate its statutory claim, id., at 811 ("We must also recognize that in this case the EEOC is not a party to any arbitration agreement"), and that the EEOC has "independent statutory authority" to vindicate the public interest, but opined that permitting the EEOC to prosecute Baker's claim in court "would significantly trample" the strong federal policy favoring arbitration because Baker had agreed to submit his claim to arbitration. Id., at 812. To effectuate this policy, the court distinguished between injunctive and victim-specific relief, and held that the EEOC is barred from obtaining the latter because any public interest served when the EEOC pursues "make whole" relief is outweighed by the policy goals favoring arbitration. Only when the EEOC seeks broad injunctive relief, in the Court of Appeals' view, does the public interest overcome the goals underpinning the FAA.7 If it were true that the EEOC could prosecute its claim only with Baker's consent, or if its prayer for relief could be dictated by Baker, the court's analysis might be persuasive. But once a charge is filed, the exact opposite is true under the statute--the EEOC is in command of the process. The EEOC has exclusive jurisdiction over the claim for 180 days. During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim. If, however, the EEOC files suit on its own, the employee has no independent cause of action, although the employee may intervene in the EEOC's suit. 42 U.S.C. §2000e-5(f)(1) (1994 ed.). In fact, the EEOC takes the position that it may pursue a claim on the employee's behalf even after the employee has disavowed any desire to seek relief. Brief for Petitioner 20. The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. Absent textual support for a contrary view, it is the public agency's province--not that of the court--to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum. Respondent and the dissent contend that Title VII supports the Court of Appeals' bar against victim-specific relief, because the statute limits the EEOC's recovery to "appropriate" relief as determined by a court. See Brief for Respondent 19, and n.8; post, at 4-6 (Thomas, J., dissenting). They rely on §706(g)(1), which provides that, after a finding of liability, "the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate." 42 U.S.C. §2000e-5(g)(1) (1994 ed.) (emphasis added). They claim this provision limits the remedies available and directs courts, not the EEOC, to determine what relief is appropriate. The proposed reading is flawed for two reasons. First, under the plain language of the statute the term "appropriate" refers to only a subcategory of claims for equitable relief, not damages. The provision authorizing compensatory and punitive damages is in a separate section of the statute, §1981a(a)(1), and is not limited by this language. The dissent responds by pointing to the phrase "may recover" in §1981a(a)(1), and arguing that this too provides authority for prohibiting victim-specific relief. See post, at 6, n.7. But this contention only highlights the second error in the proposed reading. If "appropriate" and "may recover" can be read to support respondent's position, then any discretionary language would constitute authorization for judge-made, per se rules. This is not the natural reading of the text. These terms obviously refer to the trial judge's discretion in a particular case to order reinstatement and award damages in an amount warranted by the facts of that case. They do not permit a court to announce a categorical rule precluding an expressly authorized form of relief as inappropriate in all cases in which the employee has signed an arbitration agreement.8 The Court of Appeals wisely did not adopt respondent's reading of §706(g). Instead, it simply sought to balance the policy goals of the FAA against the clear language of Title VII and the agreement. While this may be a more coherent approach, it is inconsistent with our recent arbitration cases. The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it "does not require parties to arbitrate when they have not agreed to do so." Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989).9 See also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, n. 12 (1967) ("[T]he purpose of Congress in 1925 was to make arbitration agreements as enforceable as other contracts, but not more so"). Because the FAA is "at bottom a policy guaranteeing the enforcement of private contractual arrangements," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985), we look first to whether the parties agreed to arbitrate a dispute, not to general policy goals, to determine the scope of the agreement. Id., at 626. While ambiguities in the language of the agreement should be resolved in favor of arbitration, Volt, 489 U.S., at 476, we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated. "Arbitration under the [FAA] is a matter of consent, not coercion." Id., at 479. Here there is no ambiguity. No one asserts that the EEOC is a party to the contract, or that it agreed to arbitrate its claims. It goes without saying that a contract cannot bind a nonparty. Accordingly, the proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so. Even if the policy goals underlying the FAA did necessitate some limit on the EEOC's statutory authority, the line drawn by the Court of Appeals between injunctive and victim-specific relief creates an uncomfortable fit with its avowed purpose of preserving the EEOC's public function while favoring arbitration. For that purpose, the category of victim-specific relief is both overinclusive and underinclusive. For example, it is overinclusive because while punitive damages benefit the individual employee, they also serve an obvious public function in deterring future violations. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-270 (1981) ("Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor . . . , and to deter him and others from similar extreme conduct"); Restatement (Second) of Torts §908 (1977). Punitive damages may often have a greater impact on the behavior of other employers than the threat of an injunction, yet the EEOC is precluded from seeking this form of relief under the Court of Appeals' compromise scheme. And, it is underinclusive because injunctive relief, although seemingly not "victim-specific," can be seen as more closely tied to the employees' injury than to any public interest. See Occidental, 432 U.S., at 383 (Rehnquist, J., dissenting) ("While injunctive relief may appear more `broad based,' it nonetheless is redress for individuals"). The compromise solution reached by the Court of Appeals turns what is effectively a forum selection clause into a waiver of a nonparty's statutory remedies. But if the federal policy favoring arbitration trumps the plain language of Title VII and the contract, the EEOC should be barred from pursuing any claim outside the arbitral forum. If not, then the statutory language is clear; the EEOC has the authority to pursue victim-specific relief regardless of the forum that the employer and employee have chosen to resolve their disputes.10 Rather than attempt to split the difference, we are persuaded that, pursuant to Title VII and the ADA, whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief. To hold otherwise would undermine the detailed enforcement scheme created by Congress simply to give greater effect to an agreement between private parties that does not even contemplate the EEOC's statutory function.11 V It is true, as respondent and its amici have argued, that Baker's conduct may have the effect of limiting the relief that the EEOC may obtain in court. If, for example, he had failed to mitigate his damages, or had accepted a monetary settlement, any recovery by the EEOC would be limited accordingly. See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232 (1982) (Title VII claimant "forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied"); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (CA9 1987) (employee's settlement "rendered her personal claims moot"); EEOC v. U.S. Steel Corp., 921 F.2d 489, 495 (CA3 1990) (individuals who litigated their own claims were precluded by res judicata from obtaining individual relief in a subsequent EEOC action based on the same claims). As we have noted, it "goes without saying that the courts can and should preclude double recovery by an individual." General Telephone, 446 U.S., at 333. But no question concerning the validity of his claim or the character of the relief that could be appropriately awarded in either a judicial or an arbitral forum is presented by this record. Baker has not sought arbitration of his claim, nor is there any indication that he has entered into settlement negotiations with respondent. It is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek. The only issue before this Court is whether the fact that Baker has signed a mandatory arbitration agreement limits the remedies available to the EEOC. The text of the relevant statutes provides a clear answer to that question. They do not authorize the courts to balance the competing policies of the ADA and the FAA or to second-guess the agency's judgment concerning which of the remedies authorized by law that it shall seek in any given case. Moreover, it simply does not follow from the cases holding that the employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely derivative. We have recognized several situations in which the EEOC does not stand in the employee's shoes. See Occidental, 432 U.S., at 368 (EEOC does not have to comply with state statutes of limitations); General Telephone, 446 U.S., at 326 (EEOC does not have to satisfy Rule 23 requirements); Gilmer, 500 U.S., at 32 (EEOC is not precluded from seeking classwide and equitable relief in court on behalf of an employee who signed an arbitration agreement). And, in this context, the statute specifically grants the EEOC exclusive authority over the choice of forum and the prayer for relief once a charge has been filed. The fact that ordinary principles of res judicata, mootness, or mitigation may apply to EEOC claims, does not contradict these decisions, nor does it render the EEOC a proxy for the employee. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,PETITIONER v. WAFFLE HOUSE, INC. on writ of certiorari to the united states court ofappeals for the fourth circuit [January 15, 2002] Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting. The Court holds today that the Equal Employment Opportunity Commission (EEOC or Commission) may obtain victim-specific remedies in court on behalf of an employee who had agreed to arbitrate discrimination claims against his employer. This decision conflicts with both the Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq., and the basic principle that the EEOC must take a victim of discrimination as it finds him. Absent explicit statutory authorization to the contrary, I cannot agree that the EEOC may do on behalf of an employee that which an employee has agreed not to do for himself. Accordingly, I would affirm the judgment of the Court of Appeals. I Before starting work as a grill operator for respondent Waffle House, Inc., Eric Scott Baker filled out and signed an employment application. This application included an arbitration clause providing that "any dispute or claim concerning Applicant's employment with Waffle House, Inc., or any subsidiary or Franchisee of Waffle House, Inc., or the terms, conditions or benefits of such employment ... will be settled by binding arbitration." App. 59. The Court does not dispute that the arbitration agreement between Waffle House and Baker falls comfortably within the scope of the FAA, see Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), which provides that "[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable." 9 U.S.C. §2. Neither does the Court contest that claims arising under federal employment discrimination laws, such as Baker's claim that Waffle House discharged him in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et seq. (1994 ed. and Supp. V), may be subject to compulsory arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23 (1991) (holding that a claim arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621 et seq. (1994 ed.), may be subject to compulsory arbitration).1 The Court therefore does not dispute that Baker, by signing an arbitration agreement, waived his ability either to bring an ADA claim against Waffle House in court or, consequently, to obtain relief for himself in that forum. The EEOC, in its complaint, sought to obtain the victim-specific relief for Baker that he could not seek for himself, asking a court to make Baker whole by providing reinstatement with backpay and compensatory damages and to pay Baker punitive damages.2 App. 39-40. In its responses to interrogatories and directives to produce filed the same day as its complaint, the EEOC stated unambiguously: "All amounts recovered from Defendant Employer in this litigation will be received directly by Mr. Baker based on his charge of discrimination against Defendant Employer." Id., at 52. The EEOC also admitted that it was "bring[ing] this action on behalf of Eric Scott Baker."3 Id., at 51. By allowing the EEOC to obtain victim-specific remedies for Baker, the Court therefore concludes that the EEOC may do "on behalf of Baker" that which he cannot do for himself. The Court's conclusion rests upon the following premise advanced by the EEOC: An arbitration agreement between an employer and an employee may not limit the remedies that the Commission may obtain in court because Title VII "grants the EEOC the right to obtain all statutory remedies in any action it brings."4 Brief for Petitioner 17. The EEOC contends that "the statute in clear terms authorizes [it] to obtain all of the listed forms of relief," referring to those types of relief set forth in 42 U.S.C. §2000e-5(g)(1) (1994 ed.) (including injunctive relief and reinstatement with backpay) as well as the forms of relief listed in §1981a(a)(1) (compensatory and punitive damages). Brief for Petitioner 17-18. Endorsing the EEOC's position, the Court concludes that "these statutes unambiguously authorize the EEOC to obtain the relief it seeks in its complaint if it can prove its case against respondent." Ante, at 7. The Court's position, however, is inconsistent with the relevant statutory provision. For while the EEOC has the statutory right to bring suit, see §2000e-5(f)(1), it has no statutory entitlement to obtain a particular remedy. Rather, the plain language of §2000e-5(g)(1) makes clear that it is a court's role to decide whether "to enjoin the respondent ... , and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate." (Emphasis added.) Whether a particular remedy is "appropriate" in any given case is a question for a court and not for the EEOC.5 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-416 (1975) ("The [Title VII] scheme implicitly recognizes that there may be cases calling for one remedy but not another, and ... these choices are, of course, left in the first instance to the district courts"); Selgas v. American Airlines, Inc., 104 F.3d 9, 13, n.2 (CA1 1997) ("It is clear that in a Title VII case, it is the court which has discretion to fashion relief comprised of the equitable remedies it sees as appropriate, and not the parties which may determine which equitable remedies are available"). Had Congress wished to give the EEOC the authority to determine whether a particular remedy is appropriate under §2000e-5, it clearly knew how to draft language to that effect. See §2000e-16(b) (providing that the EEOC shall have the authority to enforce §2000e-16(a)'s prohibition of employment discrimination within federal agencies "through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section"). But Congress specifically declined to grant the EEOC such authority when it empowered the Commission to bring lawsuits against private employers. Both the original House version and the original Senate version of the Equal Employment Opportunity Act of 1972 would have granted the EEOC powers similar to those possessed by the National Labor Relations Board to adjudicate a complaint and implement a remedy. See H.R. 1746, 92d Cong., 1st Sess., §706(h) (1971), and S. 2515, 92d Cong., 1st Sess., §4(h) (1971), reprinted in Legislative History of the Equal Employment Opportunity Act of 1972, pp. 7-8, 164-165. These bills were amended, however, once they reached the floor of both Houses of Congress to replace such "cease-and-desist" authority with the power only to prosecute an action in court. See 117 Cong. Rec. 32088-32111 (1971); 118 Cong. Rec. 3965-3979 (1972). The statutory scheme enacted by Congress thus entitles neither the EEOC nor an employee, upon filing a lawsuit, to obtain a particular remedy by establishing that an employer discriminated in violation of the law.6 In both cases, 42 U.S.C. §2000e-5(g)(1) governs, and that provision unambiguously requires a court to determine what relief is "appropriate" in a particular case.7 II Because Congress has not given the EEOC the authority to usurp the traditional role of courts to determine what constitutes "appropriate" relief in a given case, it is necessary to examine whether it would be "appropriate" to allow the EEOC to obtain victim-specific relief for Baker here, notwithstanding the fact that Baker, by signing an arbitration agreement, has waived his ability to seek such relief on his own behalf in a judicial forum. For two reasons, I conclude it is not "appropriate" to allow the EEOC to do on behalf of Baker that which Baker is precluded from doing for himself. A To begin with, when the EEOC litigates to obtain relief on behalf of a particular employee, the Commission must take that individual as it finds him. Whether the EEOC or an employee files a particular lawsuit, the employee is the ultimate beneficiary of victim-specific relief. The relevance of the employee's circumstances therefore does not change simply because the EEOC, rather than the employee himself, is litigating the case, and a court must consider these circumstances in fashioning an "appropriate" remedy.8 As a result, the EEOC's ability to obtain relief is often limited by the actions of an employee on whose behalf the Commission may wish to bring a lawsuit. If an employee signs an agreement to waive or settle discrimination claims against an employer, for example, the EEOC may not recover victim-specific relief on that employee's behalf. See, e.g., EEOC v. Cosmair, Inc., 821 F.2d 1085, 1091 (CA5 1987); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (CA9 1987); see also EEOC: Guidance on Waivers Under the ADA and Other Civil Rights Laws, EEOC Compliance Manual (BNA) N:2345, N:2347 (Apr. 10, 1997) (hereinafter EEOC Compliance Manual) (recognizing that a valid waiver or settlement agreement precludes the EEOC from recovering victim-specific relief for an employee). In addition, an employee who fails to mitigate his damages limits his ability to obtain relief, whether he files his own lawsuit or the EEOC files an action on his behalf. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232 (1982). An employee's unilateral attempt to pursue his own discrimination claim may also limit the EEOC's ability to obtain victim-specific relief for that employee. If a court rejects the merits of a claim in a private lawsuit brought by an employee, for example, res judicata bars the EEOC from recovering victim-specific relief on behalf of that employee in a later action. See, e.g., EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (CA7 1993). In all of the aforementioned situations, the same general principle applies: To the extent that the EEOC is seeking victim-specific relief in court for a particular employee, it is able to obtain no more relief for that employee than the employee could recover for himself by bringing his own lawsuit. The EEOC, therefore, should not be able to obtain victim-specific relief for Baker in court through its own lawsuit here when Baker waived his right to seek relief for himself in a judicial forum by signing an arbitration agreement. The Court concludes that the EEOC's claim is not "merely derivative" of an employee's claim and argues that "[w]e have recognized several situations in which the EEOC does not stand in the employee's shoes." See ante, at 18. The Court's opinion, however, attacks a straw man because this case does not turn on whether the EEOC's "claim" is wholly derivative of an employee's "claim." Like the Court of Appeals below, I do not question the EEOC's ability to seek declaratory and broad-based injunctive relief in a case where a particular employee, such as Baker, would not be able to pursue such relief in court. Rather, the dispute here turns on whether the EEOC's ability to obtain victim-specific relief is dependent upon the victim's ability to obtain such relief for himself. The Court claims that three cases support its argument that the EEOC's claim is not "merely derivative" of an employee's claim. See Gilmer v. Interstate/Johnson Lane Corp., 446 U.S. 318, 325 (1980); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368 (1977). Once the actual nature of the dispute is properly understood, however, it is apparent that these cases do not support the Court's position, for none of them suggests that the EEOC should be allowed to recover victim-specific relief on behalf of an employee who has waived his ability to obtain such relief for himself in court by signing a valid arbitration agreement. In Gilmer, for example, this Court addressed whether arbitration procedures are inadequate in discrimination cases because they do not allow for "broad equitable relief and class actions." 500 U.S., at 32. Rejecting this argument, the Court noted that valid arbitration agreements "will not preclude the EEOC from bringing actions seeking class-wide and equitable relief." Ibid. Conspicuously absent from the Court's opinion, however, was any suggestion that the EEOC could obtain victim-specific relief on behalf of an employee who had signed a valid arbitration agreement. Cf. ibid. Similarly, in General Telephone, this Court held only that lawsuits filed by the EEOC should not be considered representative actions under Federal Rule of Civil Procedure 23. In reaching this conclusion, the Court noted that "the EEOC is not merely a proxy for the victims of discrimination." 446 U.S., at 326. To be sure, I agree that to the extent the EEOC seeks broad-based declaratory and equitable relief in court, the Commission undoubtedly acts both as a representative of a specific employee and to "vindicate the public interest in preventing employment discrimination." Ibid. But neither this dual function, nor anything in General Telephone, detracts from the proposition that when the EEOC seeks to secure victim-specific relief in court, it may obtain no more relief for an individual than the individual could obtain for himself. Even the EEOC recognizes the dual nature of its role.9 See EEOC Compliance Manual N:2346 (citing General Telephone, supra, at 326). In its compliance manual, the EEOC states that "every charge filed with the EEOC carries two potential claims for relief: the charging party's claim for individual relief, and the EEOC's claim to `vindicate the public interest in preventing employment discrimination.'" EEOC Compliance Manual N:2346. It is for this reason that "a private agreement can eliminate an individual's right to personal recovery, [but] it cannot interfere with EEOC's right to enforce ... the ADA ... by seeking relief that will benefit the public and any victims of an employer's unlawful practices who have not validly waived their claims." Id., at N:2347.10 In the final case cited by the Court, Occidental Life Ins. Co. v. EEOC, this Court held that state statutes of limitations do not apply to lawsuits brought by the EEOC, because "[u]nlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties." 432 U.S., at 368. The Court also noted that the 1-year statute of limitations at issue in that case "could under some circumstances directly conflict with the timetable for administrative action expressly established in the 1972 Act." Id., at 368-369. Precluding the EEOC from seeking victim-specific remedies in court on behalf of an employee who has signed an arbitration agreement, however, would in no way impede the Commission from discharging its administrative duties nor would it directly conflict with any provision of the statute. In fact, such a result is entirely consistent with the federal policy underlying the Court's decision in Occidental: that employment discrimination claims should be resolved quickly and out of court. See id., at 368. B Not only would it be "inappropriate" for a court to allow the EEOC to obtain victim-specific relief on behalf of Baker, to do so in this case would contravene the "liberal federal policy favoring arbitration agreements" embodied in the FAA. See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Under the terms of the FAA, Waffle House's arbitration agreement with Baker is valid and enforceable. See Part I, supra. The Court reasons, however, that the FAA is not implicated in this case because the EEOC was not a party to the arbitration agreement and "[i]t goes without saying that a contract cannot bind a nonparty." Ante, at 14. The Court's analysis entirely misses the point. The relevant question here is not whether the EEOC should be bound by Baker's agreement to arbitrate. Rather, it is whether a court should give effect to the arbitration agreement between Waffle House and Baker or whether it should instead allow the EEOC to reduce that arbitration agreement to all but a nullity. I believe that the FAA compels the former course.11 By allowing the EEOC to pursue victim-specific relief on behalf of Baker under these circumstances, the Court eviscerates Baker's arbitration agreement with Waffle House and liberates Baker from the consequences of his agreement. Waffle House gains nothing and, if anything, will be worse off in cases where the EEOC brings an enforcement action should it continue to utilize arbitration agreements in the future. This is because it will face the prospect of defending itself in two different forums against two different parties seeking precisely the same relief. It could face the EEOC in court and the employee in an arbitral forum. The Court does not decide here whether an arbitral judgment would "affect the validity of the EEOC's claim or the character of relief the EEOC may seek" in court.12 Ante, at 17. Given the reasoning in the Court's opinion, however, the proverbial handwriting is on the wall. If the EEOC indeed is "the master of its own case," ante, at 11, I do not see how an employee's independent decision to pursue arbitral proceedings could affect the validity of the "EEOC's claim" in court. Should this Court in a later case determine that an unfavorable arbitral judgment against an employee precludes the EEOC from seeking similar relief for that employee in court, then the Court's jurisprudence will stand for the following proposition: The EEOC may seek relief for an employee who has signed an arbitration agreement unless that employee decides that he would rather abide by his agreement and arbitrate his claim. Reconciling such a result with the FAA, however, would seem to be an impossible task and would make a mockery of the rationale underlying the Court's holding here: that the EEOC is "the master of its own case." Ibid. Assuming that the Court means what it says, an arbitral judgment will not preclude the EEOC's claim for victim-specific relief from going forward, and courts will have to adjust damages awards to avoid double recovery. See ante, at 17. If an employee, for instance, is able to recover $20,000 through arbitration and a court later concludes in an action brought by the EEOC that the employee is actually entitled to $100,000 in damages, one assumes that a court would only award the EEOC an additional $80,000 to give to the employee. Suppose, however, that the situation is reversed: An arbitrator awards an employee $100,000, but a court later determines that the employee is only entitled to $20,000 in damages. Will the court be required to order the employee to return $80,000 to his employer? I seriously doubt it. The Court's decision thus places those employers utilizing arbitration agreements at a serious disadvantage. Their employees will be allowed two bites at the apple--one in arbitration and one in litigation conducted by the EEOC--and will be able to benefit from the more favorable of the two rulings. This result, however, discourages the use of arbitration agreements and is thus completely inconsistent with the policies underlying the FAA. C While the Court explicitly decides today only "whether the fact that Baker has signed a mandatory arbitration agreement limits the remedies available to the EEOC," ibid., its opinion sets this Court on a path that has no logical or principled stopping point. For example, if "[t]he statute clearly makes the EEOC the master of its own case," ante, at 11, and the filing of a charge puts the Commission "in command of the process," ibid., then it is likely after this decision that an employee's decision to enter into a settlement agreement with his employer no longer will preclude the EEOC from obtaining relief for that employee in court. While the Court suggests that ordinary principles of mootness "may apply to EEOC claims," ante, at 18, this observation, given the reasoning in the Court's opinion, seems largely beside the point. It should go without saying that mootness principles apply to EEOC claims. For instance, if the EEOC settles claims with an employer, the Commission obviously cannot continue to pursue those same claims in court. An employee's settlement agreement with an employer, however, does not "moot" an action brought by the EEOC nor does it preclude the EEOC from seeking broad-based relief. Rather, a settlement may only limit the EEOC's ability to obtain victim-specific relief for the employee signing the settlement agreement. See, e.g., Goodyear Aerospace Corp., 813 F.2d, at 1541-1544. The real question addressed by the Court's decision today is whether an employee can enter into an agreement with an employer that limits the relief the EEOC may seek in court on that employee's behalf. And if, in the Court's view, an employee cannot compromise the EEOC's ability to obtain particular remedies by signing an arbitration agreement, then I do not see how an employee may be permitted to do the exact same thing by signing a settlement agreement. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (noting that one purpose of the FAA is to place arbitration agreements "upon the same footing as other contracts" (citation omitted)). The Court's reasoning, for example, forecloses the argument that it would be inappropriate under 42 U.S.C. §2000e-5(g)(1) for a court to award victim-specific relief in any case where an employee had already settled his claim. If the statutory provision, according to the Court, does not "permit a court to announce a categorical rule precluding an expressly authorized form of relief as inappropriate in all cases in which the employee has signed an arbitration agreement," then it surely does not "constitute authorization for [a] judge-made, per se rul[e]" barring the EEOC from obtaining victim-specific remedies on behalf of an employee who has signed a valid settlement agreement. Ante, at 12-13. Unfortunately, it is therefore likely that under the logic of the Court's opinion the EEOC now will be able to seek victim-specific relief in court on behalf of employees who have already settled their claims. Such a result, however, would contradict this Court's suggestion in Gilmer that employment discrimination disputes "can be settled ... without any EEOC involvement." 500 U.S., at 28. More importantly, it would discourage employers from entering into settlement agreements and thus frustrate Congress' desire to expedite relief for victims of discrimination, see Ford Motor Co. v. EEOC, 458 U.S., at 221; Occidental Life, 432 U.S., at 364-365, and to resolve employment discrimination disputes out of court. See 42 U.S.C. §12212 (encouraging alternative means of dispute resolution, including settlement negotiations, to avoid litigation under the ADA). III Rather than allowing the EEOC to undermine a valid and enforceable arbitration agreement between an employer and an employee in the manner sanctioned by the Court today, I would choose a different path. As this Court has stated, courts are "not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Pittsburgh & Lake Erie R.Co. v. Railway Labor Executives' Assn., 491 U.S. 490, 510 (1989). In this case, I think that the EEOC's statutory authority to enforce the ADA can be easily reconciled with the FAA. Congress has not indicated that the ADA's enforcement scheme should be interpreted in a manner that undermines the FAA. Rather, in two separate places, Congress has specifically encouraged the use of arbitration to resolve disputes under the ADA. First, in the ADA itself, Congress stated: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this chapter." 42 U.S.C. §12212 (emphasis added). Second, Congress used virtually identical language to encourage the use of arbitration to resolve disputes under the ADA in the Civil Rights Act of 1991. See Pub. L. 102-166, §118, 105 Stat. 1081.13 The EEOC contends that these provisions do not apply to this dispute because the Commission has not signed an arbitration agreement with Waffle House and the provisions encourage arbitration "only when the parties have consented to arbitration." Reply Brief for Petitioner 17. Remarkably, the EEOC at the same time questions whether it even has the statutory authority to take this step. See Brief for Petitioner 22, n. 7. As a result, the EEOC's view seems to be that Congress has encouraged the use of arbitration to resolve disputes under the ADA only in situations where the EEOC does not wish to bring an enforcement action in court. This limiting principle, however, is nowhere to be found in §12212. The use of arbitration to resolve all disputes under the ADA is clearly "authorized by law." See Part I, supra. Consequently,I see no indication that Congress intended to grantthe EEOC authority to enforce the ADA in a mannerthat undermines valid and enforceable arbitrationagreements.14 In the last 20 years, this Court has expanded the reach and scope of the FAA, holding, for instance, that the statute applies even to state-law claims in state court and pre-empts all contrary state statutes. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating, 465 U.S. 1 (1984). I have not always agreed with this Court's jurisprudence in this area, see, e.g., Allied-Bruce, supra, at 285-297 (Thomas, J., dissenting), but it seems to me that what's good for the goose is good for the gander. The Court should not impose the FAA upon States in the absence of any indication that Congress intended such a result, see Southland, supra, at 25-30 (O'Connor, J., dissenting), yet refuse to interpret a federal statute in a manner compatible with the FAA, especially when Congress has expressly encouraged that claims under that federal statute be resolved through arbitration. Given the utter lack of statutory support for the Court's holding, I can only conclude that its decision today is rooted in some notion that employment discrimination claims should be treated differently from other claims in the context of arbitration. I had thought, however, that this Court had decisively repudiated that principle in Gilmer. See 500 U.S., at 27-28 (holding that arbitration agreements can be enforced without contravening the "important social policies" furthered by the ADEA). For all of these reasons, I respectfully dissent. FOOTNOTES Footnote 1 The agreement states: "The parties agree that any dispute or claim concerning Applicant's employment with Waffle House, Inc., or any subsidiary or Franchisee of Waffle House, Inc., or the terms, conditions or benefits of such employment, including whether such dispute or claim is arbitrable, will be settled by binding arbitration. The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration is made. A decision and award of the arbitrator made under the said rules shall be exclusive, final and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of the arbitration shall be borne evenly by the parties." App. 59. Footnote 2 Because no evidence of the employment practices alleged in the complaint has yet been presented, we of course express no opinion on the merits of the EEOC's case. We note, on the one hand, that the state human rights commission also investigated Baker's claim and found no basis for suit. On the other hand, the EEOC chooses to file suit in response to only a small number of the many charges received each year, see n. 7, infra. In keeping with normal appellate practice in cases arising at the pleading stage, we assume, arguendo, that the EEOC's case is meritorious. Footnote 3 One member of the panel dissented because he agreed with the District Court that, as a matter of fact, the arbitration clause was not included in Baker's actual contract of employment. 193 F.3d, at 813. Footnote 4 Section 12117(a) provides: "The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment." Footnote 5 "(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on judicial orders "(1) If the court finds that the respondent has intentionally engagedin or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U.S.C. §2000e-5(g)(1) (1994 ed.). Footnote 6 Section 2000e-5(f)(3) provides: "Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought." Footnote 7 This framework assumes the federal policy favoring arbitration will be undermined unless the EEOC's remedies are limited. The court failed to consider, however, that some of the benefits of arbitration are already built into the EEOC's statutory duties. Unlike individual employees, the EEOC cannot pursue a claim in court without first engaging in a conciliation process. 42 U.S.C. §2000e-5(b) (1994 ed.). Thus, before the EEOC ever filed suit in this case, it attempted to reach a settlement with respondent. The court also neglected to take into account that the EEOC files suit in a small fraction of the charges employees file. For example, in fiscal year 2000, the EEOC received 79,896 charges of employment discrimination. Although the EEOC found reasonable cause in 8,248 charges, it only filed 291 lawsuits and intervened in 111 others. Equal Employment Opportunity Commission, Enforcement Statistics and Litigation (as visited Nov. 18, 2001), http://www.eeoc.gov/stats/enforcement.html. In contrast, 21,032 employment discrimination lawsuits were filed in 2000. See Administrative Office, Judicial Business of the United States Courts 2000, Table C-2A (Sept. 30, 2000). These numbers suggest that the EEOC files less than two percent of all antidiscrimination claims in federal court. Indeed, even among the cases where it finds reasonable cause, the EEOC files suit in less than five percent of those cases. Surely permitting the EEOC access to victim-specific relief in cases where the employee has agreed to binding arbitration, but has not yet brought a claim in arbitration, will have a negligible effect on the federal policy favoring arbitration. Justice Thomas notes that our interpretation of Title VII and the FAA "should not depend on how many cases the EEOC chooses to prosecute in any particular year." See post, at 18, n.14 (dissenting opinion). And yet, the dissent predicts our holding will "reduce that arbitration agreement to all but a nullity;" post, at 12, "discourag[e] the use of arbitration agreements;" post, at 14, and "discourage employers from entering into settlement agreements," post, at 16. These claims are highly implausible given the EEOC's litigation practice over the past 20 years. When speculating about the impact this decision might have on the behavior of employees and employers, we think it is worth recognizing that the EEOC files suit in less than one percent of the charges filed each year. Footnote 8 Justice Thomas implicitly recognizes this distinction by qualifying his description of the courts' role as determining appropriate relief "in any given case," or "in a particular case." See post, at 4, 6. But the Court of Appeals' holding was not so limited. 193 F.3d 805, 812 (CA4 1999) (holding that the EEOC "may not pursue relief in court ... specific to individuals who have waived their right to a judicial forum"). Footnote 9 In Volt, the parties to a construction contract agreed to arbitrate all disputes relating to the contract and specified that California law would apply. When one party sought to compel arbitration, the other invoked a California statute that authorizes a court to stay arbitration pending resolution of related litigation with third parties not bound by the agreement when inconsistent rulings are possible. We concluded that the FAA did not pre-empt the California statute because "the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that `arbitration proceed in the manner provided for in [the parties'] agreement.' " 498 U.S., at 474-475 (quoting 9 U.S.C. §4). Similarly, the FAA enables respondent to compel Baker to arbitrate his claim, but it does not expand the range of claims subject to arbitration beyond what is provided for in the agreement. Our decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), is not inconsistent with this position. In Mastrobuono, we reiterated that clear contractual language governs our interpretation of arbitration agreements, but because the choice-of-law provision in that case was ambiguous, we read the agreement to favor arbitration under the FAA rules. Id., at 62. While we distinguished Volt on the ground that we were reviewing a federal court's construction of the contract, 514 U.S., at 60, n. 4, regardless of the standard of review, in this case the Court of Appeals recognized that the EEOC was not bound by the agreement. When that much is clear, Volt and Mastrobuono both direct courts to respect the terms of the agreement without regard to the federal policy favoring arbitration. Footnote 10 We have held that federal statutory claims may be the subject of arbitration agreements that are enforceable pursuant to the FAA because the agreement only determines the choice of forum. "In these cases we recognized that `[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.' [Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)]." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991). To the extent the Court of Appeals construed an employee's agreement to submit his claims to an arbitral forum as a waiver of the substantive statutory prerogative of the EEOC to enforce those claims for whatever relief and in whatever forum the EEOC sees fit, the court obscured this crucial distinction and ran afoul of our precedent. Footnote 11 If injunctive relief were the only remedy available, an employee who signed an arbitration agreement would have little incentive to file a charge with the EEOC. As a greater percentage of the work force becomes subject to arbitration agreements as a condition of employment, see Voluntary Arbitration in Worker Disputes Endorsed by 2 Groups, Wall St. J., June 20, 1997, p. B2 (reporting that the American Arbitration Association estimates "more than 3.5 million employees are covered" by arbitration agreements designating it to administer arbitration proceedings), the pool of charges from which the EEOC can choose cases that best vindicate the public interest would likely get smaller and become distorted. We have generally been reluctant to approve rules that may jeopardize the EEOC's ability to investigate and select cases from a broad sample of claims. Cf. EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984) ("[I]t is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368 (1977). FOOTNOTES Footnote 1 Admittedly, this case involves a claim under the ADA while Gilmer addressed compulsory arbitration in the context of the ADEA. Nevertheless, I see no reason why an employee should not be required to abide by an agreement to arbitrate an ADA claim. In assessing whether Congress has precluded the enforcement of an arbitration agreement with respect to a particular statutory claim, this Court has held that a party should be held to an arbitration agreement "unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). Here, the text of the ADA does not suggest that Congress intended for ADA claims to fall outside the purview of the FAA. Indeed, the ADA expressly encourages the use of arbitration and other forms of alternative dispute resolution, rather than litigation, to resolve claims under the statute: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials and arbitration, is encouraged to resolve disputes arising under this [Act]." 42 U.S.C. §12212 (1994 ed.). Footnote 2 The EEOC, in its prayer for relief, also requested that the court enjoin Waffle House from engaging in any discriminatory employment practice and asked the court to order Waffle House to institute policies, practices, and programs which would provide equal employment opportunities for qualified individuals with disabilities, and which would eradicate the effect of its past and present unlawful employment practices. App. 39. The Court of Appeals concluded that Baker's arbitration agreement did not preclude the EEOC from seeking such broad-based relief, and Waffle House has not appealed that ruling. See 193 F.3d 805, 813, n.3 (CA4 1999). Footnote 3 Although the EEOC's complaint alleged that Waffle House engaged in "unlawful employment practices," in violation of §102(a) of the ADA, 42 U.S.C. §12112(a), it mentioned no instances of discriminatory conduct on the part of Waffle House other than its discharge of Baker. App. 38 (emphasis added). Footnote 4 Title I of the ADA expressly incorporates "[t]he powers, remedies, and procedures set forth in [Title VII]." 42 U.S.C. §12117(a). That includes the procedures applicable to enforcement actions as well as the equitable relief available under §2000e-5(g). Footnote 5 The EEOC also points out that Title VII gives the EEOC, and not an individual victim of discrimination, the choice of forum when the EEOC files an enforcement action. See §2000e-5(f)(3). Since the statute gives the victim no say in the matter, the EEOC argues that an employee, by signing an arbitration agreement, should not be able to effectively negate ex ante the EEOC's statutory authority to choose the forum in which it brings suit. Brief for Petitioner 21-23. The Court, wisely, does not rely heavily on this argument since nothing in the Court of Appeals' decision prevents the EEOC from choosing to file suit in any appropriate judicial district set forth in §2000e-5(f)(3). Rather, the Court of Appeals' holding only limits the remedies that the EEOC may obtain when it decides to institute a judicial action. See 193 F.3d, at 806-807. Footnote 6 The Court, in fact, implicitly admits as much. Contradicting its earlier assertion that the "statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent," ante, at 7 (emphasis added), the Court later concludes that the statutory scheme gives the trial judge "discretion in a particular case to order reinstatement and award damages in an amount warranted by the facts of that case." Ante, at 12. Footnote 7 Similarly, the EEOC's authority to obtain legal remedies is also no greater than that of an employee acting on his own behalf. Title 42 U.S.C. §1981a(a)(2), which was enacted as part of the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, provides that the EEOC or an employee "may recover compensatory and punitive damages" in addition to the forms of relief authorized by §2000e-5(g)(1). (Emphasis added.) Nothing in §1981a(a), however, alters the fundamental proposition that it is for the judiciary to determine what relief (of all the relief that plaintiffs "may recover" under the statute) the particular plaintiff before the court is entitled to. The statutory language does not purport to grant the EEOC or an employee the absolute right to obtain damages in every case of proven discrimination, despite the operation of such legal doctrines as time bar, accord and satisfaction, or (as in this case) binding agreement to arbitrate. Footnote 8 I agree with the Court that, in order to determine whether a particular remedy is "appropriate," it is necessary to examine the specific facts of the case at hand. See ante, at 12. For this reason, the statutory scheme does not permit us to announce a categorical rule barring lower courts from ever awarding a form of relief expressly authorized by the statute. When the same set of facts arises in different cases, however, such cases should be adjudicated in a consistent manner. Therefore, this Court surely may specify particular circumstances under which it would be inappropriate for trial courts to award certain types of relief, such as victim-specific remedies. Footnote 9 The EEOC has consistently recognized that the Commission represents individual employees when it files an action in court. In this case, for instance, the EEOC stated in its answers to interrogatories that it brought this action "on behalf of Eric Scott Baker." See Part I, supra. Moreover, the EEOC has maintained in numerous cases that its attorneys have an attorney-client relationship with charging parties and their communications with charging parties are therefore privileged. See, e.g., EEOC v. Johnson & Higgins, 1998 U.S. Dist. LEXIS 17612, *1 (SDNY, Nov. 5, 1998); EEOC v. McDonnell Douglas Corp., 948 F.Supp. 54 (ED Mo. 1996). Footnote 10 This Court has recognized that victim-specific remedies also serve the public goals of antidiscrimination statutes. See, e.g., McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357-358 (1995). Nevertheless, when the EEOC is seeking such remedies, it is only serving the public interest to the extent that an employee seeking the same relief for himself through litigation or arbitration would also be serving the public interest. It is when the EEOC is seeking broader relief that its unique role in vindicating the public interest comes to the fore. The Commission's motivation to secure such relief is likely to be greater than that of an individual employee, who may be primarily concerned with securing relief only for himself. Footnote 11 The Court also reasons that "the FAA enables respondent to compel Baker to arbitrate his claim, but it does not expand the range of claims subject to arbitration beyond what is provided for in the agree-ment." Ante, at 13, n.9. The Court does not explain, however, how the EEOC's ADA claim on Baker's behalf differs in any meaningful respect from the ADA claim that Baker would have been compelled to submit to arbitration. Footnote 12 In the vast majority of cases, an individual employee's arbitral proceeding will be resolved before a parallel court action brought by the EEOC. See Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 Colum. Human Rights L.Rev. 29, 55 (1998) (reporting that in arbitration the average employment discrimination case is resolved in under nine months while the average employment discrimination case filed in federal district court is not resolved for almost two years). Footnote 13 This provision states: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title." Among "the Acts or provisions of Federal law" amended by the Civil Rights Act of 1991 was the ADA. See Pub. L. 102-166, §109, 105 Stat. 1071. Footnote 14 I do not see the relevance of the Court's suggestion that its decision will only "have a negligible effect on the federal policy favoring arbitration" because the EEOC brings relatively few lawsuits. Ante, at 10, n.7. In my view, either the EEOC has been authorized by statute to undermine valid and enforceable arbitration agreements, such as the one at issue in this case, or one should read the Commission's enforcement authority and the FAA in a harmonious manner. This Court's jurisprudence and the proper interpretation of the relevant statutes should not depend on how many cases the EEOC chooses to prosecute in any particular year. I simply see no statutory basis for the Court's implication that the EEOC has the authority to undermine valid and enforceable arbitration agreements so long as the Commission only opts to interfere with a relatively limited number of agreements.

liberal

person

unions

1957-142-01

United States Supreme Court ASHDOWN v. UTAH(1958) No. 158 Argued: April 1, 1958Decided: June 30, 1958 Petitioner claims that her conviction in a state court of first-degree murder was obtained by use in evidence of an oral confession which had been obtained in such a manner that its use violated due process of law under the Fourteenth Amendment. Her husband had died suddenly. Arriving at the cemetery just after the interment, the sheriff asked her to come to the courthouse, which she did. There she talked with the sheriff, a deputy sheriff and the district attorney, all of whom she knew. The district attorney advised her that she did not have to answer any questions and was entitled to an attorney, but she did not request an attorney until after her oral confession. She was treated in a temperate and courteous manner. She was told that her husband had died of poisoning, and the matter was approached as if to discover whether it had been accidental. The district attorney told her that he had once been cleared of a criminal charge by cooperating with the investigators. The officers let her talk freely on family matters without interruption. About four and a half hours after the interview began, she made the oral confession in issue here. Meanwhile, her father and uncle had come to the building and asked to see her, but they were not permitted to do so until after the interview. Held: The record contains ample support for a finding that the officers did not take advantage of petitioner and that nothing they did had the effect of overbearing her will; and the judgment is affirmed. Pp. 427-431. 5 Utah 2d 59, 296 P.2d 726, affirmed. J. Vernon Erickson, acting under appointment by the Court, 355 U.S. 853 , argued the cause and filed a brief for petitioner. Walter L. Budge, Deputy Attorney General of Utah, argued the cause for respondent. With him on the brief was E. R. Callister, Attorney General. [357 U.S. 426, 427] MR. JUSTICE BURTON delivered the opinion of the Court. A jury in a Utah court found petitioner, Mrs. Ashdown, guilty of the first-degree murder of her husband and recommended a life sentence. The question before us is whether petitioner's oral confession was obtained in such a manner as to make its use in evidence a violation of the due process of law required by the Fourteenth Amendment to the Constitution of the United States. This issue was thoroughly considered by the trial court which made findings in relation to it. The Supreme Court of Utah reviewed the record in detail and upheld the admission of the confession. 5 Utah 2d 59, 296 P.2d 726. We granted certiorari. 353 U.S. 981 . Our independent review of the record brings us to the same conclusion. On July 5, 1955, Ray Ashdown, petitioner's husband, died suddenly in his home in Cedar City, Utah. Petitioner had summoned a doctor who arrived shortly before Ray Ashdown's death. The doctor testified that the deceased gave the appearance of having been poisoned and that he told the doctor just before he died that he had taken some bitter-tasting lemon juice about a half hour earlier. On being called, the sheriff made a thorough search of the Ashdown home but found no trace of any poison. An autopsy was performed, and the contents of the deceased's stomach was sent to the state chemist's office for analysis. The report, received by the sheriff on July 9, stated that the stomach of the deceased contained strychnine. July 9 was the day of the funeral. Promptly after receipt of the chemist's report, the sheriff went to the cemetery, arriving just after the interment. Through petitioner's brother-in-law, the sheriff asked that petitioner come to the County and City Building. At about 4 p. m. she and her sister arrived at the sheriff's office. [357 U.S. 426, 428] The sheriff asked to talk with petitioner privately and she consented. They went across the hall to an empty courtroom where the sheriff, a deputy sheriff and the district attorney, all people known by the petitioner, talked with her for the next five and one-half hours. The sheriff told petitioner the results of the autopsy and the chemist's report. Within the first half hour, the district attorney advised her that she did not have to answer any questions and that she was entitled to consult with an attorney. She made no request for an attorney at that time. She said she did not think she could add anything to help the investigation, but she mentioned her husband had been despondent on several occasions. The officers let her talk freely on family matters without interruption and such conversation consumed about half the time spent in the interview. The sheriff attempted to direct her attention to discovering whether her husband's death might have been due to an accident. To impress her with the importance of the distinction between murder and manslaughter, the district attorney read her some of the statutes relating to those crimes. In addition, he told her about an experience he had in the Army in Europe. He said he had been accused of killing five men but, by cooperating with investigating officials, he had been cleared of all blame for those deaths. The officers reviewed in detail the events of July 5. Petitioner admitted giving her husband a cup of lemon juice about a half hour before his death. She said she had put salt in the juice and denied that she might have mistakenly used poison instead of salt. The sheriff asked whether the deceased drank all of the lemon juice offered him. Petitioner replied that he had not, and that she had thrown out the remainder and put the cup, unwashed, on top of the Frigidaire. In their search of the house, the officers found the cup, washed, standing on the drainboard. [357 U.S. 426, 429] When asked about it, petitioner said that, after she had gone for the second time to a neighbor's house to call the doctor (who arrived before she returned), she had washed the cup and placed it where the officers found it. Petitioner could not explain why she had walked past the doctor and her husband, who was at that moment in the last extremity, to wash a cup. Petitioner several times asked whether the officers wanted her to confess to something she had not done, and they repeatedly told her they did not. Petitioner, at one point, stated that her husband had put the strychnine in the lemon juice. After a brief interrogation as to how he had done it, the sheriff told her he did not believe her husband had poisoned himself. Petitioner then confessed that she had put five or six grains of strychnine in the cup. She said she had planned to take it herself but later decided to give it to her husband. The sheriff testified that she was emotionally upset, crying and sobbing. The confession came about four and one-half hours after the questioning began. Petitioner hesitated to say where she had obtained the strychnine and suggested she should have an attorney. The sheriff did not respond to this request. He said merely that she had told them everything except where the poison came from, and she might as well tell that "and get this over with." She then told where she had obtained the strychnine. Meanwhile, petitioner's father and uncle had come to the County and City Building. They asked to see petitioner and their request was denied, pending completion of the interview. They waited in the sheriff's office and, at his request, made several trips to the Ashdown home. From their position in the hall outside the courtroom, they heard petitioner crying and sobbing. After petitioner had confessed, the sheriff asked her whether she [357 U.S. 426, 430] wanted to see her relatives. At first she refused, saying she was ashamed to face them, but the sheriff persisted and she eventually consented. On the 10th, the sheriff prepared a written statement of what petitioner had said the day before and took it to her cell. She was told she could sign the statement or not as she wished, and she could make changes. She examined the statement carefully, made numerous changes, and signed it. At the trial, the court held an extended hearing in the absence of the jury on the admissibility of petitioner's confessions. Petitioner took the stand during the preliminary hearing but testified only as to what the district attorney had said. She did not challenge any other statements of the sheriff, the deputy sheriff or the district attorney. The trial court ruled that all statements made by petitioner after her request for an attorney, including the written statement, should be excluded. Thus, only the oral confession was introduced in evidence before the jury. Petitioner emphasizes the statement of the district attorney that he had once avoided a criminal charge by cooperating with the investigating officers. Petitioner argues that this statement was an implied promise of immunity or leniency to be exercised in return for a confession. We agree with the Supreme Court of Utah that, under the circumstances, this statement was not improper. It was made long before petitioner confessed and in connection with the search for an accidental explanation of the death. Moreover, petitioner was repeatedly told not to confess to something she had not done. A study of the record as a whole convinces us that the interview with petitioner was temperate and courteous. The sheriff proceeded cautiously and acted with consideration for the feelings of petitioner. For example, he explained that the reason he did not seek a written statement [357 U.S. 426, 431] until the day after the interview was that "We thought we would talk to her on the 10th, she would be calm and wouldn't be excited and she would know what she was doing. We didn't want to feel like taking advantage of her." Petitioner's emotional distress during the interview may be attributed to her remorse, rather than to any coercive conduct of the officers. There is nothing in the record which indicates that the sheriff chose to question petitioner immediately after her husband's funeral in order to capitalize on her feelings. Rather, he appears to have taken the first opportunity to talk with her after it had been established that her husband's death was caused by poisoning. The questioning was done by officers whom petitioner knew. She was not questioned in relays or made to repeat a story over and over while the interrogators searched for an inconsistency or flaw. She was allowed to talk without interruption about such matters as she chose. In sum, we find ample support in this record for a finding that the officers did not intend to take advantage of petitioner and that nothing they did had the effect of overbearing her will. Accordingly, the judgment is Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. The uncle and the father of petitioner appeared at the sheriff's office shortly after petitioner was arrested. The uncle testified that he said, "I don't think she has got a right to be questioned without her father's presence or some attorney." The father testified that he said, "I made the remark that it didn't look to me like a fair, square deal, to railroad that girl into that sheriff's office without counsel or friends of any description." The uncle and the father were denied admission. They were calmed by the assurance that the accused had a [357 U.S. 426, 432] lawyer at her side to aid her under the questioning of the police - which was not true. The request of a next of kin or friend outside the jail that counsel be furnished the accused who was inside under examination should be demand enough. Certainly those on the outside would have calmer judgment than the accused. They should speak for her unless it is clear, as it was not in this case, that the accused had waived her right to a lawyer and had elected to talk instead. For the reasons stated in my dissent in Crooker v. California, post, p. 441, decided this day, I would reverse this judgment of conviction. [357 U.S. 426, 433]

conservative

public_entity

criminal_procedure

1997-025-01

United States Supreme Court DOLORES M. OUBRE v. ENTERGY OPERATIONS, INC.(1998) No. 96-1291 Argued: November 12, 1997Decided: January 26, 1998 In consideration for receipt of severance pay under an employment termination agreement, petitioner Oubre signed a release of all claims against her employer, respondent Entergy Operations, Inc. In procuring the release, Entergy failed to comply in at least three respects with the requirements for a release under the Age Discrimination in Employment Act (ADEA), as set forth in the Older Workers Benefit Protection Act (OWBPA): It did not (1) give Oubre enough time to consider her options, (2) give her seven days to change her mind, or (3) make specific reference to ADEA claims. After receiving her last severance payment, Oubre sued Entergy, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the monies she had received. The District Court agreed and entered summary judgment for Entergy. The Fifth Circuit affirmed. Held: As the release did not comply with the OWBPA's requirements, it cannot bar Oubre's ADEA claim. The OWBPA provides: "An individual may not waive any [ADEA] claim . . . unless the waiver is knowing and voluntary . . . . [A] waiver may not be considered knowing and voluntary unless at a minimum" it satisfies certain enumerated requirements, including the three listed above. 29 U.S.C. § 626(f)(1). Thus, the OWBPA implements Congress' policy of protecting older workers' rights and benefits via a strict, unqualified statutory stricture on waivers, and this Court is bound to take Congress at its word. By imposing specific duties on employers seeking releases of ADEA claims and delineating these duties with precision and without exception or qualification, the statute makes its command clear: An employee "may not waive" an ADEA claim unless the waiver or release satisfies the OWBPA's requirements. Oubre's release does not do so. Nor did her mere retention of monies amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. Accordingly, even if Entergy has correctly stated the contract ratification and equitable estoppel principles on which it relies, its argument is unavailing because the authorities it cites do not consider the OWBPA's commands. Moreover, Entergy's proposed rule would frustrate the statute's practical operation as well as its formal command. A discharged employee often will have spent the monies received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA's waiver provisions, knowing that it will be difficult to repay the monies and relying on ratification. This Court ought not to open the door to an evasion of the statute by this device. Pp. 3-6. 112 F. 3d 787, reversed and remanded. KENNEDY , J., delivered the opinion of the Court, in which STEVENS , O'CONNOR , SOUTER , GINSBURG , and BREYER , JJ., joined. BREYER , J., filed a concurring opinion, in which O'CONNOR , J., joined. SCALIA , J., filed a dissenting opinion. THOMAS , J., filed a dissenting opinion, in which REHNQUIST , C. J., joined. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. U.S. Supreme Court No. 96-1291 DOLORES M. OUBRE, PETITIONER v. ENTERGY OPERATIONS, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [January 26, 1998] JUSTICE KENNEDY delivered the opinion of the Court. An employee, as part of a termination agreement, signed a release of all claims against her employer. In consideration, she received severance pay in installments. The release, however, did not comply with specific federal statutory requirements for a release of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U.S.C. § 621 et seq. After receiving the last payment, the employee brought suit under the ADEA. The employer claims the employee ratified and validated the nonconforming release by retaining the monies paid to secure it. The employer also insists the release bars the action unless, as a precondition to filing suit, the employee tenders back the monies received. We disagree and rule that, as the release did not comply with the statute, it cannot bar the ADEA claim. I Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operations, Inc. In 1994, she received a poor performance rating. Oubre's supervisor met with her on January 17, 1995, and gave her the option of either improving her performance during the coming year or accepting a voluntary arrangement for her severance. She received a packet of information about the severance agreement and had 14 days to consider her options, during which she consulted with attorneys. On January 31, Oubre decided to accept. She signed a release, in which she "agree[d] to waive, settle, release, and discharge any and all claims, demands, damages, actions, or causes of action . . . that I may have against Entergy . . . ." App. 61. In exchange, she received six installment payments over the next four months, totaling $6,258. The Older Workers Benefit Protection Act (OWBPA) imposes specific requirements for releases covering ADEA claims. OWBPA, §201, 104 Stat. 983, 29 U. S. C. §§626(f)(1)(B), (F), (G). In procuring the release, Entergy did not comply with the OWBPA in at least three respects: (1) Entergy did not give Oubre enough time to consider her options. (2) Entergy did not give Oubre seven days after she signed the release to change her mind. And (3) the release made no specific reference to claims under the ADEA. Oubre filed a charge of age discrimination with the Equal Employment Opportunity Commission, which dismissed her charge on the merits but issued a right-to-sue letter. She filed this suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Oubre has not offered or tried to return the $6,258 to Entergy, nor is it clear she has the means to do so. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the monies she had received. The District Court agreed and entered summary judgment for Entergy. The Court of Appeals affirmed, 112 F. 3d 787 (CA5 1996) (per curiam) , and we granted certiorari, 520 U. S. ___ (1997). II The employer rests its case upon general principles of state contract jurisprudence. As the employer recites the rule, contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party. See 1 Restatement (Second) of Contracts §7, and Comment b (1979); e.g., Ellerin v. Fairfax Sav. Assn., 78 Md. App. 92, 108-109, 552 A. 2d 918, 926-927 (Md. Spec. App.), cert. denied, 316 Md. 210, 557 A. 2d 1336 (1989). The employer maintains, however, that before the innocent party can elect avoidance, she must first tender back any benefits received under the contract. See, e.g., Dreiling v. Home State Life Ins. Co. , 213 Kan. 137, 147-148, 515 P. 2d 757, 766-767 (1973). If she fails to do so within a reasonable time after learning of her rights, the employer contends, she ratifies the contract and so makes it binding. Restatement (Second) of Contracts, supra , §7, Comments d, e ; see, e.g., Jobe v. Texas Util. Elec. Co. , No. 05-94-01368CV, 1995 WL 479645, *3 (Tex. App.-Dallas, Aug. 14, 1995) (unpublished). The employer also invokes the doctrine of equitable estoppel. As a rule, equitable estoppel bars a party from shirking the burdens of a voidable transaction for as long as she retains the benefits received under it. See, e.g., Buffum v. Peter Barceloux Co., 289 U.S. 227, 234 (1933) (citing state case law from Indiana and New York). Applying these principles, the employer claims the employee ratified the ineffective release (or faces estoppel) by retaining all the sums paid in consideration of it. The employer, then, relies not upon the execution of the release but upon a later, distinct ratification of its terms. These general rules may not be as unified as the employer asserts. See generally Annot., 76 A. L. R. 344 (1932) (collecting cases supporting and contradicting these rules); Annot., 134 A. L. R. 6 (1941) (same). And in equity, a person suing to rescind a contract, as a rule, is not required to restore the consideration at the very outset of the litigation. See 3 Restatement (Second) of Contracts, supra, §384, and Comment b ; Restatement of Restitution §65, Comment d (1936); D. Dobbs, Law of Remedies §4.8, p. 294 (1973). Even if the employer's statement of the general rule requiring tender back before one files suit were correct, it would be unavailing. The rule cited is based simply on the course of negotiation of the parties and the alleged later ratification. The authorities cited do not consider the question raised by statutory standards for releases and a statutory declaration making nonconforming releases ineffective. It is the latter question we confront here. In 1990, Congress amended the ADEA by passing the OWBPA. The OWBPA provides: "An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary. . . . [A] waiver may not be considered knowing and voluntary unless at a minimum" it satisfies certain enumerated requirements, including the three listed above. 29 U.S.C. § 626(f)(1). The statutory command is clear: An employee "may not waive" an ADEA claim unless the waiver or release satisfies the OWBPA's requirements. The policy of the Older Workers Benefit Protection Act is likewise clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress' policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee "may not waive" an ADEA claim unless the employer complies with the statute. Courts cannot with ease presume ratification of that which Congress forbids. The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications. The text of the OWBPA forecloses the employer's defense, notwithstanding how general contract principles would apply to non-ADEA claims. The rule proposed by the employer would frustrate the statute's practical operation as well as its formal command. In many instances a discharged employee likely will have spent the monies received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA's waiver provisions, knowing it will be difficult to repay the monies and relying on ratification. We ought not to open the door to an evasion of the statute by this device. Oubre's cause of action arises under the ADEA, and the release can have no effect on her ADEA claim unless it complies with the OWBPA. In this case, both sides concede the release the employee signed did not comply with the requirements of the OWBPA. Since Oubre's release did not comply with the OWBPA's stringent safeguards, it is unenforceable against her insofar as it purports to waive or release her ADEA claim. As a statutory matter, the release cannot bar her ADEA suit, irrespective of the validity of the contract as to other claims. In further proceedings in this or other cases, courts may need to inquire whether the employer has claims for restitution, recoupment, or setoff against the employee, and these questions may be complex where a release is effective as to some claims but not as to ADEA claims. We need not decide those issues here, however. It suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute. Nor did the employee's mere retention of monies amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. The statute governs the effect of the release on ADEA claims, and the employer cannot invoke the employee's failure to tender back as a way of excusing its own failure to comply. We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Older Workers Benefit Protection Act, §201, 104 Stat. 983, 29 U.S.C. § 626(f): (f) Waiver (1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum- (A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims arising under this Act; (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; (G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; (H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to- (i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. (2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual's representative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum- (A) subparagraphs (A) through (E) of paragraph (1) have been met; and (B) the individual is given a reasonable period of time within which to consider the settlement agreement. (3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2). (4) No waiver agreement may affect the Commission's rights and responsibilities to enforce this Act. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission. U.S. Supreme Court No. 96-1291 DOLORES M. OUBRE, PETITIONER v. ENTERGY OPERATIONS, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [January 26, 1998] JUSTICE BREYER , with whom JUSTICE O'CONNOR joins, concurring. This case focuses upon a worker who received a payment from her employer and in return promised not to bring an age-discrimination suit. Her promise failed the procedural tests of validity set forth in the OWBPA, 29 U.S.C. § 626(f)(1). I agree with the majority that, because of this procedural failing, the worker is free to bring her age-discrimination suit without "tendering-back" her employer's payment as a precondition. As a conceptual matter, a "tender-back" requirement would imply that the worker had ratified her promise by keeping her employer's payment. For that reason, it would bar suit, including suit by a worker (without other assets) who had already spent the money he received for the promise. Yet such an act of ratification could embody some of the same procedural failings that led Congress to find the promise not to sue itself invalid. For these reasons, as the majority points out, a tender-back precondition requirement would run contrary to Congress' statutory command. See ante , at 45. Cf. 1 Restatement (Second) of Contracts §85, Comment b (1979) (a promise ratifying a voidable contract "may itself be voidable for the same reason as the original promise, or it may be voidable or unenforceable for some other reason"); D. Dobbs, Law of Remedies 982 (1973) (hereinafter Dobbs) ("[C]ourts must avoid allowing a recovery that has the effect of substantially enforcing the contract that has been declared unenforceable, since to do so would defeat the policy that led to the . . . rule in the first place"). I write these additional words because I believe it important to specify that the statute need not, and does not, thereby make the worker's procedurally invalid promise totally void, i.e. , without any legal effect, say, like a contract the terms of which themselves are contrary to public policy. See 1 Restatement (Second) of Contracts , §7, Comment a ; 2 id ., §178. Rather, the statute makes the contract that the employer and worker tried to create voidable, like a contract made with an infant, or a contract created through fraud, mistake or duress, which contract the worker may elect either to avoid or to ratify. See 1 id ., §7 and Comment b . To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e.g. , a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e.g ., a contract to commit murder. Compare 1 id ., §7, Comment b (voidable) with 2 id ., §178 and Comment d (void). The statute before us reflects concern about the conditions (of knowledge and free choice) surrounding the making of a contract to waive an age-discrimination claim. It does not reflect any relevant concern about enforcing the contract's substantive terms. Nor does this statute, unlike the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq ., say that a contract waiving suit and thereby avoiding liability is void. §55. Rather, as the majority's opinion makes clear, see ante , at 4-5, the OWBPA prohibits courts from finding ratification in certain circumstances, such as those presented here, namely, a worker's retention of a employer's payment for an invalid release. That fact may affect ratification, but it need not make the contract void, rather than voidable. That the contract is voidable rather than void may prove important. For example, an absolutely void contract, it is said, "is void as to everybody whose rights would be affected by it if valid." 17A Am. Jur. 2d, Contracts §7, p. 31 (1991). Were a former worker's procedurally invalid promise not to sue absolutely void, might it not become legally possible for an employer to decide to cancel its own reciprocal obligation, say, to pay the worker, or to provide ongoing health benefits-whether or not the worker in question ever intended to bring a lawsuit? It seems most unlikely that Congress, enacting a statute meant to protect workers, would have wanted to create-as a result of an employer's failure to follow the law-any such legal threat to all workers, whether or not they intend to bring suit. To find the contract voidable, rather than void, would offer legal protection against such threats. At the same time, treating the contract as voidable could permit an employer to recover his own reciprocal payment (or to avoid his reciprocal promise) where doing so seems most fair, namely, where that recovery would not bar the worker from bringing suit. Once the worker (who has made the procedurally invalid promise not to sue) brings an age-discrimination suit, he has clearly rejected (avoided) his promise not to sue. As long as there is no "tender-back" precondition, his (invalid) promise will not have barred his suit in conflict with the statute. Once he has sued, however, nothing in the statute prevents his employer from asking for restitution of his reciprocal payment or relief from any ongoing reciprocal obligation. See Restatement of Restitution §47, Comment b (1936) ("A person who transfers something to another believing that the other thereby comes under a duty to perform the terms of a contract . . . is ordinarily entitled to restitution for what he has given if the obligation intended does not arise and if the other does not perform"); Dobbs, supra , at 994 (restitution is often allowed where benefits are conferred under voidable contract). A number of older state cases indicate, for example, that the amount of consideration paid for an invalid release can be deducted from a successful plaintiff's damages award. See, e.g., St. Louis-San Francisco R. Co . v. Cox , 171 Ark. 103, 113-115, 283 S. W. 31, 35 (1926) (amount paid for invalid release may be taken into consideration in setting remedy); Koshka v. Missouri Pac. R. Co. , 114 Kan. 126, 129-130, 217 P. 293, 295 (1923) (the sum paid for an invalid release may be treated as an item of credit against damages); Miller v. Spokane Int'l R. Co., 82 Wash. 170, 177-178, 143 P. 981, 984 (1914) (same); Gilmore v. Western Elec. Co., 42 N. D. 206, 211-212, 172 N. W. 111, 113 (1919). My point is that the statute's provisions are consistent with viewing an invalid release as voidable, rather than void. Apparently, five or more Justices take this view of the matter. See post , at ___ n.1, ___. As I understand the majority's opinion, it is also consistent with this view, and I consequently concur in its opinion. U.S. Supreme Court No. 96-1291 DOLORES M. OUBRE, PETITIONER v. ENTERGY OPERATIONS, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [January 26, 1998] JUSTICE SCALIA , dissenting. I agree with Justice Thomas that the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f), does not abrogate the common-law doctrines of "tender back" and ratification. Because no "tender back" was made here, I would affirm the judgment. I do not consider ratification a second basis for affirmance, since ratification cannot occur until the impediment to the conclusion of the agreement is eliminated. Thus, an infant cannot ratify his voidable contracts until he reaches majority, and a party who has contracted under duress cannot ratify until the duress is removed. See 1 E. Farnsworth, Farnsworth on Contracts §4.4, p. 381, §4.19, p. 443 (1990). Of course for some contractual impediments, discovery itself is the cure. See 12 W. Jaeger, Williston on Contracts §1527, p. 626 (3d ed. 1970) (ratification by a defrauded party may occur "after discovery of the fraud"); Farnsworth , supra, §9.3, p. 520 (ratification by party entitled to avoid for mistake may occur after "that party is or ought to be aware of the facts"). The impediment here is not of that sort. OWBPA provides that "[a]n individual may not waive any right or claim under th[e] [ADEA] unless the waiver is knowing and voluntary," 29 U.S.C. § 626(f)(1), and says that a waiver "may not be considered knowing and voluntary" unless it satisfies the requirements not complied with here, ibid. That a party later learns that those requirements were not complied with no more enables ratification of the waiver than does such knowledge at the time of contracting render the waiver effective ab initio . U.S. Supreme Court No. 96-1291 DOLORES M. OUBRE, PETITIONER v. ENTERGY OPERATIONS, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [January 26, 1998] JUSTICE THOMAS , with whom CHIEF JUSTICE REHNQUIST joins, dissenting. The Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f), imposes certain minimum requirements that waivers of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. , must meet in order to be considered "knowing and voluntary." The Court of Appeals held that petitioner had ratified a release of ADEA claims that did not comply with the OWBPA by retaining the benefits she had received in exchange for the release, even after she had become aware of the defect and had decided to sue respondent. The majority does not suggest that the Court of Appeals was incorrect in concluding that petitioner's conduct was sufficient to constitute ratification of the release. Instead, without so much as acknowledging the long-established principle that a statute "must 'speak directly' to the question addressed by the common law" in order to abrogate it, United States v. Texas , 507 U.S. 529, 534 (1993) (quoting Mobil Oil Corp. v. Higginbotham , 436 U.S. 618, 625 (1978)), the Court holds that the OWBPA abrogates both the commonlaw doctrine of ratification and the doctrine that a party must "tender back" consideration received under a release of legal claims before bringing suit. Because the OWBPA does not address either of these common-law doctrines at all, much less with the clarity necessary to abrogate them, I respectfully dissent. It has long been established that " '[s]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.' " United States v. Texas , supra , at 534 (quoting Isbrandtsen Co. v. Johnson , 343 U.S. 779, 783 (1952)). Congress is understood to legislate against a background of common-law principles, Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991), and thus "does not write upon a clean slate," United States v. Texas , supra , at 534. As a result, common-law doctrines " 'ought not to be deemed repealed, unless the language of a statute be clear and explicit for this purpose.' " Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U.S. 30, 35 (1983) (quoting Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603, 623 (1813)). The only clear and explicit purpose of the OWBPA is to define "knowing and voluntary" in the context of ADEA waivers. Prior to the statute's enactment, the Courts of Appeals had disagreed about the proper standard for determining whether such waivers were knowing and voluntary. Several courts had adopted a "totality of the circumstances" test as a matter of federal waiver law, see, e.g. , Cirillo v. Arco Chemical Co. , 862 F. 2d 448, 451 (CA3 1988); Bormann v. AT&T Communications, Inc. , 875 F. 2d 399, 403 (CA2), cert. denied, 493 U.S. 924 (1989); O'Hare v. Global Natural Resources, Inc. , 898 F. 2d 1015, 1017 (CA5 1990), while others had relied solely on common-law contract principles, see Runyan v. National Cash Register Corp. , 787 F. 2d 1039, 1044, n. 10, 1045 (CA6) (en banc), cert. denied, 479 U.S. 850 (1986); Lancaster v. Buerkle Buick Honda Co. , 809 F. 2d 539, 541 (CA8), cert. denied, 482 U.S. 928 (1987). In enacting the OWBPA, Congress adopted neither approach, instead setting certain minimum requirements that every release of ADEA rights and claims must meet in order to be deemed knowing and voluntary. I therefore agree with the Court that the OWBPA abrogates the common-law definition of a "knowing and voluntary" waiver where ADEA claims are involved. From this rather unremarkable proposition, however, the Court leaps to the conclusion that the OWBPA supplants the common-law doctrines of ratification and tender back. The doctrine of ratification (also known in contract law as affirmation) provides that a party, after discovering a defect in the original release, can make binding that otherwise voidable release either explicitly or by failing timely to return the consideration received. See Restatement (Second) of Contracts, §7, Comments d , e (1979); 1 E. Farnsworth, Farnsworth on Contracts §4.15 (1990); §4.19. 1 The tender back doctrine requires, as a condition precedent to suit, that a plaintiff return the consideration received in exchange for a release, on the theory that it is inconsistent to bring suit against the defendant while at the same time retaining the consideration received in exchange for a promise not to bring such a suit. See Buffum v. Peter Barceloux , 289 U.S. 227, 234 (1933) (citing state cases). The OWBPA simply does not speak to ratification. It is certainly not the case-notwithstanding the Court's statement that the OWBPA "governs the effect under federal law of waivers or releases on ADEA claims," ante , at 5-that ratification can never apply in the context of ADEA releases. There is no reason to think that releases voidable on non-statutory grounds such as fraud, duress, or mistake cannot be ratified: The OWBPA merely imposes requirements for knowing and voluntary waivers and is silent regarding fraud, duress, and mistake. Further, the statute makes no mention of whether there can ever be a valid ratification in the more specific instance, presented by this case, of a release of ADEA claims that fails to satisfy the statute's requirements. Instead, the statute merely establishes prerequisites that must be met for a release to be considered knowing and voluntary; the imposition of these statutory requirements says absolutely nothing about whether a release that fails to meet these prerequisites can ever be ratified. Not only does the text of the OWBPA make no mention of ratification, but it also cannot be said that the doctrine is inconsistent with the statute. The majority appears to reason that ratification cannot apply in the ADEA context because releases would be given legal effect where they should have none. As the Court explains, "the release can have no effect on [the employee's] ADEA claim unless it complies with the OWBPA." Ante , at 5. Or, put another way, because petitioner's release did not comply with the statute, "it is unenforceable against her insofar as it purports to waive or release her ADEA claim." Ibid. The Court's concerns, however, appear directed at ratification itself, rather than at its application in the ADEA context. Ratification necessarily applies where a release is unenforceable against one party at its adoption because of some deficiency; the whole point of ratification is to give legal effect to an otherwise voidable release. By defining the requirements that must be met for a release of ADEA claims to be considered knowing and voluntary, the OWBPA merely establishes one of the ways in which a release may be unenforceable at its adoption. The OWBPA does not suggest any reason why a noncomplying release cannot be made binding, despite the original defect, in the same manner as any other voidable release. Nor does ratification conflict with the purpose of the OWBPA. Ratification occurs only when the employee realizes that the release does not comply with the OWBPA and nevertheless assents to be bound. See 12 W. Jaeger, Williston on Contracts §1527 (3d ed. 1970) (ratification may occur only after defect is discovered); Restatement (Second) of Contracts, supra , §381 (same). This is surely consistent with the statutory purpose of ensuring that waivers of ADEA claims are knowing and voluntary. 2 The question remains whether the OWBPA imposes requirements that a ratification must meet. Ratification of a voidable release, like the release itself, must be knowing and voluntary. Otherwise, it too is voidable by the innocent party. See id ., §85, Comment b. Although the Court does not expressly address this question, it appears that the Court's holding requires, at minimum, that the statutory requirements apply in the ratification context. The OWBPA does not, however, clearly displace the common-law definition of "knowing and voluntary" in the ratification context. The statute itself states that it applies to waivers and is absolutely silent regarding ratification or affirmation. Further, several of the statutory requirements cannot be translated easily into the ratification context. The requirements that an employee be given a period of at least 21 days to consider the agreement, §626(f)(1)(F)(i), and that he have a 7-day period in which to revoke the agreement, §626(f)(1)(G), naturally apply in the context of the original release, but seem superfluous when applied to ratification. For example, when an employee has implicitly ratified the original release by retaining the consideration for several months after discovering its defects, a 21-day waiting period to consider the agreement and a 7-day revocation period have no place. An employee thus may ratify a release that fails to comply with the OWBPA. For many of the same reasons that the OWBPA does not abrogate the doctrine of ratification, it also does not abrogate the tender back requirement. Certainly the statute does not supplant the tender back requirement in its entirety. Where a release complies with the statute but is voidable on other grounds (such as fraud), the OWBPA does not relieve an employee of the obligation to return the consideration received before suing his employer; the OWBPA does not even arguably address such a situation. And in the more specific context of a release that fails to comply with the OWBPA, the statute simply says nothing about whether there can ever be an obligation to tender back the consideration before filing suit. Nor is the tender back requirement inconsistent with the OWBPA. Although it does create an additional obligation that would not exist but for the noncomplying release, the doctrine merely puts the employee to a choice between avoiding the release and retaining the benefit of his bargain. After all, this doctrine does not preclude suit but merely acts as a condition precedent to it; the employee need only return the consideration before the statute of limitations period has run. And despite the Court's concern that "[i]n many instances a discharged employee likely will have spent the monies received and will lack the means to tender their return," ante , at 5; see also ante , at 1 (BREYER , J., concurring), 3 courts have interpreted the tender back doctrine flexibly, such that immediate tender is not always required. See D. Dobbs, Law of Remedies §9.3(3), pp. 590-591 (1973); Fleming v. United States Postal Service AMF O'Hare , 27 F. 3d 259, 260 (CA7 1994). If anything, the Court's holding creates a windfall for an employee who may now retain the consideration received from his employer while at the same time filing suit. Finally, it is clear that the statutory requirements have no application to the tender back requirement. The tender back doctrine operates not to make the voidable release binding, as does ratification, but rather precludes a party from simultaneously retaining the benefits of the release and suing to vindicate released claims. See supra , at 3. That is, the requirement to tender back is simply a condition precedent to suit; it has nothing to do with whether a waiver was knowing and voluntary. Nothing in the statute even arguably implies that the statutory requirements must be met before this obligation arises. In sum, the OWBPA does not clearly and explicitly abrogate the doctrines of ratification and tender back. Congress, of course, is free to do so. But until it does, these common-law doctrines should apply to releases of ADEA claims, just as they do to other releases. Because the Court of Appeals determined that petitioner had indeed ratified her release, and there is no reason to think that this determination was in error, I would affirm. I therefore respectfully dissent. Footnotes [Footnote 1 For the reasons noted by JUSTICE BREYER, see ante , at 2-3, I think it cannot be doubted that releases that fail to meet the OWBPA's requirements are merely voidable, rather than void. [Footnote 2 Although the Court, relying on the statute's title, defines the OWBPA's purpose broadly as "protect[ing] the rights and benefits of older workers," ante , at 4, the statute itself suggests only the more specific purpose of preventing unknowing or involuntary waivers of ADEA rights and claims. [Footnote 3 The statements of the majority in this regard, like much of the majority opinion generally, imply that noncomplying releases are void as against public policy, rather than voidable. That certainly is not the case. See n. supra . And JUSTICE BREYER does not explain why his alternative-permitting the employer to seek restitution-survives the OWBPA while the tender back requirement does not. See ante , at 3-4.

liberal

person

civil_rights

1983-122-01

United States Supreme Court FRANCHISE TAX BOARD OF CALIFORNIA v. USPS(1984) No. 83-372 Argued: April 17, 1984Decided: June 11, 1984 After determining that four employees of appellee United States Postal Service were delinquent in their payment of state income taxes, appellant Franchise Tax Board of California served process on appellee ordering it to withhold the delinquent amounts from the employees' wages pursuant to a provision of the California Revenue and Taxation Code. When appellee refused to comply, appellant filed an action in Federal District Court, alleging that appellee was liable under the Code for failing to honor the orders. The District Court entered summary judgment for appellee, holding that 5 U.S.C. 5517, which authorized the agreement that California and the United States had made regarding the withholding of state income taxes from federal employees' pay, applied only to withholding of anticipated tax liabilities and not to delinquent liabilities. The Court of Appeals affirmed, rejecting appellant's argument that 39 U.S.C. 401(1), which provides that appellee may "sue and be sued in its official name," had waived any sovereign immunity that appellee might possess. Held: When administrative process of the type employed by appellant issues against appellee, it has been "sued" within the meaning of 401(1), and must respond to that process. Pp. 516-525. (a) Not only must this Court liberally construe the sue-and-be-sued clause of 401(1), but it also must presume that appellee's liability is the same as that of any other business. FHA v.Burr, 309 U.S. 242 . No showing has been made to overcome that presumption. Since an order to withhold cannot issue unless appellee owes the employee wages, appellee is nothing but a stakeholder; the order has the same effect on its ability to operate efficiently as it does that of any other employer subject to the California statute. Pp. 516-521. (b) It would be illogical to conclude that Congress differentiated between process issued by an administrative agency such as appellant and that of a court, for even if a court issued the order to withhold, neither appellee nor its employees would be in a materially different position. In operation and effect, appellant's orders to withhold are identical to a court judgment, since they give rise to a binding obligation to pay the [467 U.S. 512, 513] assessed amounts. Neither appellee nor its employees would obtain any additional protections from a requirement that such orders be issued by a court, since the liability cannot be contested until after the tax has been paid and a refund action brought. Moreover, to construe 401(1) to require the issuance of judicial process before appellee need honor an order to withhold would create unwarranted disruption of the State's delinquent tax collection process, while simultaneously depriving the orders of some of their efficacy. Pp. 521-525. 698 F.2d 1029, reversed and remanded. STEVENS, J., delivered the opinion for a unanimous Court. Patti S. Kitching, Deputy Attorney General of California, argued the cause for appellant. With her on the briefs were John K. Van De Kamp, Attorney General, and Edmond B. Mamer, Deputy Attorney General. David A. Strauss argued the cause for appellee. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Joan M. Bernott. * [Footnote * A brief of amici curiae urging reversal was filed for the State of Delaware et al. by Stephen H. Sachs, Attorney General of Maryland, and Diane G. Motz, Assistant Attorney General, Charles M. Oberly III, Attorney General of Delaware, and John Fidele, Deputy Attorney General, Hubert H. Humphrey III, Attorney General Minnesota, and Kent G. Harbison, Chief Deputy Attorney General, Dave Frohnmayer, Attorney General of Oregon, and William F. Gary, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Jay A. Molluso, Chief Deputy Attorney General. JUSTICE STEVENS delivered the opinion of the Court. Appellant, the Franchise Tax Board of California, determined that four employees of appellee United States Postal Service were delinquent in the payment of their state income taxes. The Board served process on the Postal Service directing it to withhold the amounts of the delinquencies from the employees' wages, pursuant to 18817 of the California Revenue and Taxation Code, which authorizes the Board to [467 U.S. 512, 514] require any employer to withhold delinquent taxes from an employee's salary and transfer those funds to the Board. 1 The question presented is whether the Postal Service was obligated to honor these "orders to withhold." I When the Postal Service refused to comply with the four orders to withhold, the Board filed this action in the United States District Court for the Central District of California asserting that the Service was liable under the Revenue and Taxation Code for failing to honor the orders, 2 and invoking federal jurisdiction pursuant to 39 U.S.C. 409(a) and 28 U.S.C. 1339. 3 The District Court entered summary judgment for the Postal Service. It held that 5 U.S.C. 5517, which authorized the agreement that California and the United States had made regarding the withholding of state income taxes from the pay of federal employees, applies only to withholding of anticipated tax liabilities and not to [467 U.S. 512, 515] delinquent liabilities. 4 The Court of Appeals affirmed, agreeing that 5 U.S.C. 5517 excused the Service from complying with the orders. Employment Development Department v. United States Postal Service, 698 F.2d 1029 (CA9 1983). 5 The Court of Appeals rejected the Board's argument that 5517 did not prohibit issuance of the orders, and also rejected the argument that the provision in 39 U.S.C. 401(1) declaring that the Postal Service may "sue and be sued in its official name" had waived any sovereign immunity that the Service might possess. 6 This appeal followed. 7 In this Court, the Postal Service does not argue that 5 U.S.C. 5517 and the agreement pursuant thereto between the United States and California prohibit the issuance of an order to withhold against the Postal Service with respect to delinquent tax liabilities of its employees. 8 To the contrary, [467 U.S. 512, 516] the Postal Service expressly concedes that it is amenable to judicial process and could be required to honor a garnishment order requiring it to withhold the salary of a federal employee in order to satisfy a delinquent tax liability if issued by a state court. 9 Instead, the Postal Service contends that although it must obey a judicial order, it retains sovereign immunity with respect to state administrative tax levies. It argues that while the provision that the Postal Service can "sue and be sued in its official name" waives immunity from suit, it does not apply to administrative proceedings. II The Board does not dispute the proposition that, unless waived, sovereign immunity prevents the creditor of a federal [467 U.S. 512, 517] employee from collecting a debt through a judicial order requiring the United States to garnishee the employee's salary. See Buchanan v. Alexander, 4 How. 20 (1845). Rather, it places its primary reliance on 39 U.S.C. 401(1), which indicates that the Postal Service may "sue and be sued." Thus the question in this case is whether this statutory waiver of sovereign immunity extends to the Board's orders to withhold. This Court construed a statute providing that an agency created by Congress - the Federal Housing Authority - was empowered "to sue and be sued," in FHA v. Burr, 309 U.S. 242 (1940). In Burr the question presented was whether the agency had to honor a garnishment order issued by a state court. The Court began by observing: "Since consent to `sue and be sued' has been given by Congress, the problem here merely involves a determination of whether or not garnishment comes within the scope of that authorization." Id., at 244. It continued: "[W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed. This policy is in line with the current disfavor of the doctrine of governmental immunity from suit, as evidenced by the increasing tendency of Congress to waive the immunity where federal governmental corporations are concerned. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of [467 U.S. 512, 518] Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." Id., at 245 (footnote omitted). 10 The Court then explained why garnishment orders fell within the scope of the statutory waiver of sovereign immunity: "Clearly the words `sue and be sued' in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Garnishment and attachment commonly are part and parcel of the process, provided by statute, for the collection of debt. . . . [H]owever it may be denominated, whether legal or equitable, and whenever it may be available, whether prior to or after final judgment, garnishment is [467 U.S. 512, 519] a well-known remedy available to suitors. To say that Congress did not intend to include such civil process in the words `sue and be sued' would in general deprive suits of some of their efficacy." Id., at 245-246 (footnotes and citation omitted). If anything, the waiver of sovereign immunity is broader here than it was in Burr. In passing the Postal Reorganization Act of 1970, 84 Stat. 719, Congress not only indicated that the Postal Service could "sue and be sued," 39 U.S.C. 401(1), but also that it had the power "to settle and compromise claims by or against it," 401(8), and that "[t]he provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service." 409(c). 11 Neither of these provisions would have been necessary had Congress intended to preserve sovereign immunity with respect to the Postal Service. 12 Congress also indicated that it wished the [467 U.S. 512, 520] Postal Service to be run more like a business than had its predecessor, the Post Office Department. 13 Here, the Board has employed the same "well-known" remedy that was held to be within the scope of a sue-and-be-sued clause in Burr. Moreover, as was true of the agency involved in Burr, Congress has "launched [the Postal Service] into the commercial world"; hence under Burr not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the Service's liability is the same as that of any other business. No showing has been made to overcome that presumption. Since an order to withhold cannot issue unless the Postal Service owes the employee wages, the Service is nothing but a stakeholder; the order to withhold has precisely the same effect on its ability to operate efficiently as it does on that of any other employer subject to the California statute. It creates no greater inconvenience than did the garnishment order that this Court held could issue against a federal agency in Burr. 14 Indeed, the Board's [467 U.S. 512, 521] order to withhold contains the same direction as did the writ of garnishment served on the FHA in Burr. The Postal Service attempts to distinguish Burr by observing that the waiver of sovereign immunity in 401(1) is limited to cases in which it has been "sued," and then arguing that because the process that has issued here is that of an administrative agency rather than a court, the Service has not been "sued" within the meaning of 401(1). This crabbed construction of the statute overlooks our admonition that waiver of sovereign immunity is accomplished not by "a ritualistic formula"; rather intent to waive immunity and the scope of such a waiver can only be ascertained by reference to underlying congressional policy. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389 (1939). 15 In this [467 U.S. 512, 522] case, at the level of policy and practicality it is illogical to conclude that Congress would have differentiated between process issued by the Board and that of a court, for even if a court issued the orders to withhold, neither the Postal Service nor its employees would be in a materially different position. The operation of California's tax collection process makes it clear that there is no meaningful difference between an order to withhold issued by the Board and a garnishment order issued by a court. Under state law an assessment that has been validly made against a taxpayer 16 operates to impose an absolute liability for the tax that may not be contested except in an action seeking refund of amounts already paid. Indeed state law is unequivocal in requiring employers to honor orders to withhold - no defense is permitted. 17 Thus, a California [467 U.S. 512, 523] tax assessment, like a federal tax assessment, operates in a way that is functionally indistinguishable from the judgment of a court of law; it creates an absolute legal obligation to make payment by a date certain: "Once the tax is assessed the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives. Default in meeting the obligations calls for some procedure whereby payment can be enforced. The statute might remit the Government to an action at law wherein the taxpayer could offer such defense as he had. A judgment against him might be collected by the levy of an execution. But taxes are the life-blood of government, and their prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection. The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor's property to satisfy the debt." Bull v. United States, 295 U.S. 247, 259 -260 (1935). 18 Thus, in operation and effect the Board's orders to withhold are identical to the judgment of a court. They give rise to a binding legal obligation to pay the assessed amounts; the taxpayer may no more dispute this liability than the liability under any other judgment. Neither the Postal Service nor its employees would obtain any additional protections from a requirement that such orders be issued by a court, since the liability cannot be contested until after the tax has been paid [467 U.S. 512, 524] and a refund action brought. 19 At the same time, construing the statute to require the issuance of judicial process before the Postal Service need honor an order to withhold would create unwarranted disruption of the State's machinery for collection of delinquent taxes, 20 while simultaneously depriving the orders of "some of their efficacy" - a result inconsistent with Burr. There is thus no reason to believe that Congress intended to impose a meaningless procedural requirement that an order to withhold be issued by a court. To distinguish between administrative and judicial process would be to take an approach to sovereign immunity that this Court rejected more than 40 years ago - "to impute to Congress a desire for incoherence in a body of affiliated enactments and for drastic legal differentiation where policy justifies none." Keifer & Keifer, 306 U.S., at 394 . 21 In cases of this kind, we believe [467 U.S. 512, 525] Congress intended the Postal Service to be treated similarly to other self-sustaining commercial ventures. Accordingly, we hold that when administrative process of the type employed by the Board issues against the Postal Service, it has been "sued" within the meaning of 401(1), and must respond to that process. 22 The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Footnotes [Footnote 1 The statute provides in pertinent part: "The Franchise Tax Board may by notice, served personally or by first-class mail, require any employer . . . having in [its] possession, or under [its] control, any credits or other personal property or other things of value, belonging to a taxpayer . . . to withhold, from such credits or other personal property or other things of value, the amount of any tax, interest, or penalties due from the taxpayer . . . and to transmit the amount withheld to the Franchise Tax Board at such times as it may designate. . . ." Cal. Rev. & Tax. Code Ann. 18817 (West 1983). [Footnote 2 See Cal. Rev. & Tax. Code Ann. 18818 (West 1983) ("Any employer or person failing to withhold the amount due from any taxpayer and to transmit the same to the Franchise Tax Board after service of a notice pursuant to Section 18817 is liable for such amounts"). [Footnote 3 Section 1339 vests in district courts jurisdiction over any action arising under an Act of Congress relating to the Postal Service. Section 409(a) provides: "Except as provided in section 3628 of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court . . . ." [Footnote 4 In the alternative, the District Court held that the state statute obligating employers to honor orders to withhold did not apply to the Postal Service. [Footnote 5 However, the Court of Appeals disagreed with the District Court's construction of the state statute, concluding that it did authorize issuance of the orders to withhold to the Postal Service. [Footnote 6 Judge Schroeder dissented, arguing that 401(1) constituted a waiver of the Postal Service's immunity from process, including the type of process embodied in the orders to withhold. [Footnote 7 While the Court of Appeals did not say in so many words that 18817 and 18818 could not constitutionally be applied to the Postal Service, it did expressly hold that the state statute required the Postal Service to honor the orders to withhold. Therefore, a necessary predicate to the Court of Appeals' holding is that enforcement of the state statute would be inconsistent with federal law and hence invalid under the Supremacy Clause of the Constitution. See California v. Grace Brethren Church, 457 U.S. 393, 405 -407 (1982); United States v. Clark, 445 U.S. 23, 26 , n. 2 (1980). Accordingly, we have jurisdiction over this appeal under 28 U.S.C. 1254(2). See City of Detroit v. Murray Corp., 355 U.S. 489 (1958). [Footnote 8 As the text of 5517 makes clear, it simply authorizes withholding agreements that otherwise the United States might be without statutory authority to enter, and limits the waiver of sovereign immunity with respect to these agreements. It does not concern the scope of the Postal Service's amenability to process under 39 U.S.C. 401(1): [467 U.S. 512, 516] "(a) When a State statute - "(1) provides for the collection of a tax either by imposing on employers generally the duty of withholding sums from the pay of employees and making returns of the sums to the State, or by granting to employers generally the authority to withhold sums from the pay of employees if any employee voluntarily elects to have such sums withheld; and "(2) imposes the duty or grants the authority to withhold generally with respect to the pay of employees who are residents of the State; the Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of the State withholding statute in the case of employees of the agency who are subject to the tax and whose regular place of Federal employment is within the State with which the agreement is made. . . . "(b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a State for services performed in withholding State income taxes from the pay of the employees of the agency." [Footnote 9 See Brief for Appellee 13-15. In fact, the Postal Service's regulations provide for withholding of employees' wages when garnished by court order, United States Postal Service, Financial Management Manual 431.1(g) (1978); see 39 CFR 211.2(a)(2) (1983). [Footnote 10 Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 84 -85 (1941); United States v. Shaw, 309 U.S. 495, 501 (1940). See also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 280 -281 (1959); Brady v. Roosevelt S. S. Co., 317 U.S. 575, 580 (1943). See generally National City Bank of New York v. Republic of China, 348 U.S. 356, 359 (1955) ("[E]ven the immunity enjoyed by the United States as territorial sovereign is a legal doctrine which has not been favored by the test of time. It has increasingly been found to be in conflict with the growing subjection of governmental action to the moral judgment"). Justice Frankfurter, writing for a unanimous Court in the Term prior to Burr, foreshadowed Burr's approach to waivers of sovereign immunity: "Congress has provided for not less than forty of such corporations discharging governmental functions, and without exception the authority to sue-and-be-sued was included. Such a firm practice is partly an indication of the present climate of opinion which has brought governmental immunity from suit into disfavor, partly it reveals a definite attitude on the part of Congress which should be given hospitable scope." Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390 -391 (1939) (footnotes omitted). [Footnote 11 Chapter 171 of Title 28 governs procedure under the Federal Tort Claims Act, 28 U.S.C. 2671-2680. [Footnote 12 The nearly universal conclusion of the lower federal courts has been that the Postal Reorganization Act constitutes a waiver of sovereign immunity. See Insurance Co. of North America v. United States Postal Service, 675 F.2d 756, 758 (CA5 1982); Portmann v. United States, 674 F.2d 1155, 1168 (CA7 1982); Associates Financial Services of America, Inc. v. Robinson, 582 F.2d 1 (CA5 1978) (per curiam); Beneficial Finance Co. of New York, Inc. v. Dallas, 571 F.2d 125 (CA2 1978); General Electric Credit Corp. v. Smith, 565 F.2d 291 (CA4 1977) (per curiam); Goodman's Furniture Co. v. United States Postal Service, 561 F.2d 462 (CA3 1977); May Department Stores Co. v. Williamson, 549 F.2d 1147 (CA8 1977); Standard Oil Division v. Starks, 528 F.2d 201 (CA7 1975) (per curiam); Kennedy Electric Co. v. United States Postal Service, 508 F.2d 954, 957 (CA10 1974); Butz Engineering Corp. v. United States, 204 Ct. Cl. 561, 566-567, 499 F.2d 619, 621-622 (1974); Milner v. Bolger, 546 F. Supp. 375 (ED Cal. 1982); Lutz v. United States Postal Service, 538 F. Supp. 1129, 1132 (EDNY 1982); Lincoln National Bank & Trust Co. v. Marotta, 442 F. Supp. 49 (NDNY 1977); Bank of Virginia v. Tompkins, 434 F. Supp. 787 (ED Va. 1977); United Virginia Bank/National v. Eaves, 416 F. Supp. 518 [467 U.S. 512, 520] (ED Va. 1976); Iowa-Des Moines National Bank v. United States, 414 F. Supp. 1393 (SD Iowa 1976); Colonial Bank v. Broussard, 403 F. Supp. 686 (ED La. 1975). But see Nolan v. Woodruff, 68 F. R. D. 660 (DC 1975); Drs. Macht, Podore & Associates, Inc. v. Girton, 392 F. Supp. 66 (SD Ohio 1975); Lawhorn v. Lawhorn, 351 F. Supp. 1399 (SD W. Va. 1972); Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (ED Mich. 1972). [Footnote 13 See H. R. Rep. No. 91-1104, pp. 5, 11-12 (1970); 116 Cong. Rec. 19846 (1970) (remarks of Rep. Corbett); id., at 20226 (remarks of Rep. Udall). Perhaps the clearest practical expression of this intent was Congress' decision to create a new postal rate structure designed to make the Postal Service self-supporting. See 39 U.S.C. 3621; H. R. Rep. No. 91-1104, pp. 16-17 (1970). See also National Assn. of Greeting Card Publishers v. United States Postal Service, 462 U.S. 810, 813 -814 (1983). [Footnote 14 In Burr, the Court rejected the argument that the burden of responding to garnishment actions would interfere with its ability to perform its functions. See 309 U.S., at 249 . Moreover, the burden upon the Postal Service of responding to the Board's orders to withhold is no greater than the burden it would face if it had to comply with a similar order issued by a state court, which the Postal Service concedes would not be barred by sovereign immunity. It should be noted that the Postal Service cannot be [467 U.S. 512, 521] held liable for honoring the orders to withhold, see Cal. Tax. & Rev. Code Ann. 18819 (West 1983). [Footnote 15 Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S., at 84 . See also Federal Land Bank v. Priddy, 295 U.S. 229 (1935) (in order to interpret waiver of sovereign in a practical manner, sue-and-be-sued clause construed to extend to permit prejudgment attachment). In Keifer & Keifer, the Court wrote: "Therefore, the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. For more than a hundred years corporations have been used as agencies for doing work of government. Congress may create them `as appropriate means of executing the powers of government, as, for instance, . . . a railroad corporation for the purpose of promoting commerce among the States.' But this would not confer on such corporations legal immunity even if the conventional to-sue-and-be-sued clause were omitted. In the context of modern thought and practice regarding the use of corporate facilities, such a clause is not a ritualistic formula which alone can engender liability like unto indispensable words of early common law, such as `warrantizio' or `to A and his heirs,' for which there were no substitutes and without which desired legal consequences could not be wrought. "Congress may, of course, endow a governmental corporation with the government's immunity. But always the question is: has it done so? This is our present problem. Has Congress endowed Regional with immunity in the circumstances which enveloped its creation? It is not a textual problem; for Congress has not expressed its will in words. Congress may [467 U.S. 512, 522] not even have had any consciousness of intention. The Congressional will must be divined, and by a process of interpretation which, in effect, is the ascertainment of policy immanent not merely in the single statute from which flow the rights and responsibilities of Regional, but in a series of statutes utilizing corporations for governmental purposes and drawing significance from dominant contemporaneous opinion regarding the immunity of government agencies from suit." 306 U.S., at 388 -389 (citations omitted) (quoting Luxton v. North River Bridge Co., 153 U.S. 525, 529 (1894)). [Footnote 16 California law requires that a taxpayer receive notice and opportunity for hearing prior to the assessment of a deficiency, both before the Board and then before the State Board of Equalization through an administrative appeal. See Cal. Rev. & Tax. Code Ann. 18581-18602 (West 1983). No question is raised as to the constitutional sufficiency of the notice and opportunity for hearing that the four Postal Service employees received. See generally Commissioner v. Shapiro, 424 U.S. 614, 629 -632, and n. 12 (1976). [Footnote 17 Cal. Rev. & Tax. Code Ann. 18819 (West 1983) ("Any employer or person required to withhold and transmit any amount pursuant to this article shall comply with the requirement without resort to any legal or equitable action in a court of law or equity"); see Kanarek v. Davidson, 85 Cal. App. 3d 341, 346, 148 Cal. Rptr. 86, 89 (1978). California courts will not entertain a suit contesting the assessment of a tax until after the taxpayer has exhausted his administrative refund remedy. See Aronoff v. Franchise Tax Board, 60 Cal. 2d 177, 180-181, 383 P.2d 409, 411 (1963). Moreover, California law prohibits the issuance of an injunction restraining the [467 U.S. 512, 523] assessment or collection of any tax, Cal. Const., Art. XIII, 32; Cal. Rev. & Tax. Code 19081 (West 1983); see California v. Grace Brethren Church, 457 U.S., at 400 -401, n. 10, 415. [Footnote 18 See G. M. Leasing Corp. v. United States, 429 U.S. 338, 352 , n. 18 (1977); Palmer v. McMahon, 133 U.S. 660, 669 (1890); Hager v. Reclamation District No. 108, 111 U.S. 701, 710 (1884). See also Randall v. Franchise Tax Board, 453 F.2d 381 (CA9 1971); Greene v. Franchise Tax Board, 27 Cal. App. 3d 38, 44, 103 Cal. Rptr. 483, 486-487 (1972). [Footnote 19 The Postal Service argues that there is a significant distinction between administrative and judicial garnishment because it can remove the latter proceeding, unlike the former, to federal court under 39 U.S.C. 409(a). However, as an initial matter it is far from clear that the Postal Service may remove a garnishment action when it is merely a stakeholder and the real party in interest is the employee. See Jones Store Co. v. Hammons, 424 F. Supp. 494 (WD Mo. 1977); Armstrong Cover Co. v. Whitfield, 418 F. Supp. 972 (ND Ga. 1976). See also Murray v. Murray, 621 F.2d 103 (CA5 1980). Even assuming that such a case is removable, the facts of this case demonstrate the fallacy in the Postal Service's argument. If the Service feels it has a meritorious defense to the order to withhold, though it is hard to see how it could, see supra, at 522-523, it remains free to refuse to honor the order to withhold and force the Board to file suit against it, as it did here, or else it can initiate its own lawsuit against the Board under 409(a). [Footnote 20 See generally California v. Grace Brethren Church, 457 U.S., at 410 -411; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981); Rosewell v. LaSalle National Bank, 450 U.S. 503, 522 (1981); Great Lakes Co. v. Huffman, 319 U.S. 293, 298 (1943). [Footnote 21 In Keifer & Keifer, the Court held that a Regional Agricultural Credit Corporation, a Government corporation, was not protected by sovereign immunity even though its authorizing legislation contained no sue-and-be-sued clause; since its parent corporation and a wide variety of similarly situated [467 U.S. 512, 525] entities did not have immunity, the Court concluded that Congress could not have intended a different result with respect to the regional corporation. See 306 U.S., at 392 -394. See also Federal Land Bank v. Priddy, 295 U.S., at 235 -236. [Footnote 22 The Postal Service argues that Congress must have intended the Board to employ the "piggyback" provisions for collecting delinquent state tax liabilities found in 26 U.S.C. 6361-6365, since they were passed to address this problem. However, nothing in that statute, which permits States to use the summary collection procedures of the Internal Revenue Service, limits the power of States to use any other available procedure. The Postal Service also argues that when Congress enacted 5 U.S.C. 5520 in 1974, providing for the United States to enter withholding agreements for city and county income taxes, it must have assumed that the Service retained its sovereign immunity. Section 5520 is, however, no more relevant to this case than 5517; both provide the Secretary of the Treasury with explicit authority to enter into withholding agreements which he might not otherwise be able to make; neither addresses the scope of the Service's sovereign immunity. See n. 8, supra. Moreover, the Postal Service's position that Congress intended use of only 5517, 5520, and the piggyback provisions of the Internal Revenue Code to collect state taxes is inconsistent with the Services's position that it has no immunity from a judicial garnishment order. In light of our disposition, we need not reach the Board's contention that the Buck Act, 4 U.S.C. 105-110, requires the Postal Service to honor the orders to withhold. [467 U.S. 512, 526]

conservative

public_entity

federalism

1970-047-01

United States Supreme Court MONITOR PATRIOT CO. v. ROY(1971) No. 62 Argued: December 17, 1970Decided: February 24, 1971 Just before the 1960 New Hampshire Democratic primary election, petitioner newspaper published a column characterizing senatorial candidate Roy as a "former small-time bootlegger." Roy, who was not elected, sued the newspaper and the distributor of the column for libel. The judge told the jury that Roy, as a candidate, was a "public official," and that a rule requiring a showing that the article was false and had been published "with knowledge of its falsity or with reckless disregard of whether it was false or true," applied as long as the libel concerned "official" as opposed to "private" conduct. The jury was instructed that if it found the libel to be in the "public sector," it had to bring in a verdict for the distributor, as there was no evidence that it had engaged in knowing or reckless falsehood, but that it had to decide on the "preponderance of the evidence" whether the newspaper was liable. If the publication was in the "private sector," there were two defenses: (1) "justification," if the article was true and published on a "lawful occasion," and (2) "conditional privilege," if the article was false but if the publication was "on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published." The jury returned a verdict against both the newspaper and the distributor of the column. The State Supreme Court affirmed, holding that the jury properly considered whether the alleged libel was "relevant" to Roy's fitness for office. Held: 1. Publications concerning candidates for public office must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. Pp. 270-272. 2. As a matter of constitutional law, a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for purposes of applying the "knowing falsehood or reckless disregard" rule of New York Times Co. v. Sullivan, 376 U.S. 254 . Pp. 272-277. [401 U.S. 265, 266] 3. The jury here was erroneously permitted to determine that the criminal charge was not "relevant" and that the New York Times standard was inapplicable. P. 277. 109 N. H. 441, 254 A. 2d 832, reversed and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 301. BLACK, J., filed an opinion concurring in the judgment and dissenting in part, in which DOUGLAS, J., joined, post, p. 277. Edward Bennett Williams argued the cause for petitioners. With him on the briefs were Harold Ungar and Joseph A. Millimet. Stanley M. Brown argued the cause and filed a brief for respondent. MR. JUSTICE STEWART delivered the opinion of the Court. On September 10, 1960, three days before the New Hampshire Democratic Party's primary election of candidates for the United States Senate, the Concord Monitor, a daily newspaper in Concord, New Hampshire, published a syndicated "D.C. Merry-Go-Round" column discussing the forthcoming election. The column spoke of political maneuvering in the primary campaign, referred to the criminal records of several of the candidates, and characterized Alphonse Roy, one of the candidates, as a "former small-time bootlegger." 1 Roy was not [401 U.S. 265, 267] elected in the primary, and he subsequently sued the Monitor Patriot Co. and the North American Newspaper Alliance (NANA), the distributor of the column, for libel. [401 U.S. 265, 268] The newspaper and NANA offered "truth" as their primary defense at trial, and evidence was presented on the issue of whether or not Roy had in fact been a bootlegger during the prohibition era. The defendants also alleged that they had published in good faith, without malice, with a reasonable belief in the probable truth of the charge, and on a lawful occasion. At the close of the evidence, the trial judge instructed the jury at great length on the law to be applied to the case. Three possible defenses emerged from these jury instructions. First, the trial judge told the jury that Roy was a "public official" by virtue of his candidacy in the primary. As a consequence, a special rule, requiring a showing that the article was false and had been published with "knowledge of its falsity or with a reckless disregard of whether it was false or true," would apply so long as the libel concerned "official conduct" as opposed to "private conduct." This private-public distinction was elaborated as follows: "Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with [401 U.S. 265, 269] official conduct of public officials?" The trial judge went on: "As a candidate for the United States Senate, the plaintiff was within the public official concept, and a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office. That is, anything which might touch on Alphonse Roy's fitness for the office of United States Senator would come within the concept of official conduct. If it would not touch upon or be relevant to his fitness for the office for which he was a candidate but was rather a bringing forward of the plaintiff's long forgotten misconduct in which the public had no interest, then it would be a private matter in the private sector." The judge then instructed the jury that if it found the libel to be in the "public sector" it must bring in a verdict for NANA, since there had been no evidence that NANA had engaged in knowing or reckless falsehood, but that it still had to decide on the "preponderance of the evidence" whether the newspaper was liable. Supposing the publication to be in the "private sector," the trial judge instructed the jury that there were two possible defenses available to the newspaper and NANA. The first was "justification," which would prevail if the jury found that the article was both true and published on a "lawful occasion." 2 The second defense was "conditional [401 U.S. 265, 270] privilege," which could prevail even if the jury found the article to be false, but only if it also found that its publication was "on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published." The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Supreme Court affirmed the judgment, holding that the trial judge properly sent to the jury the question of whether or not the particular libel alleged was "relevant" to Roy's fitness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U.S. 904 . I In New York Times Co. v. Sullivan, 376 U.S. 254, 279 -280, we held that the First and Fourteenth Amendments require "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society's interest in the protection of individual reputation. The approach of New York Times was to identify a class of person - [401 U.S. 265, 271] there public officials - and a type of activity - there official conduct - and to require as to defamations respecting them a particularly high standard of liability - knowing falsehood or reckless disregard of the truth. Later cases have made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for that matter, to conventional civil libel suits. Garrison v. Louisiana, 379 U.S. 64 ; Curtis Publishing Co. v. Butts, 388 U.S. 130 ; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6 . This case went to the jury in December 1966, after our decisions in New York Times and Garrison, but before Curtis and Greenbelt. The trial judge instructed the jury that Roy, as a candidate for elective public office, was a "public official," and that characterization has not been challenged here. Given the later cases, it might be preferable to categorize a candidate as a "public figure," if for no other reason than to avoid straining the common meaning of words. But the question is of no importance so far as the standard of liability in this case is concerned, for it is abundantly clear that, whichever term is applied, publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. That New York Times itself was intended to apply to candidates, in spite of the use of the more restricted "public official" terminology, is readily apparent from that opinion's text and citations to case law. 3 And if it be conceded that the First [401 U.S. 265, 272] Amendment was "fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth v. United States, 354 U.S. 476, 484 , then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office. II The jury in the case returned verdicts against both the newspaper and NANA. It is clear, therefore, that it found the bootlegger charge to be in the "private sector," since it had been instructed that unless it so found it could not impose liability on NANA. It is possible that having made this determination, it then concluded that the charge was true but "unjustified" - that is, that it had been published without a "lawful occasion." In any event, under the trial judge's instructions it was also free to return a money verdict if it found that the publication was false and had not been made "in good faith," for a "justifiable purpose," and with a "belief founded on reasonable grounds of the truth of the matter published." Since this standard is far less stringent than that of knowing falsehood or reckless disregard of the truth, the judgment must be reversed unless it can be shown that the New York Times rule is not applicable because of the nature of the libel in question. Cf. Ocala Star-Banner Co. v. Damron, post, p. 295. [401 U.S. 265, 273] The respondent argues that under New York Times a plaintiff has a special burden of proof only as to libels "relating to official conduct," that for a candidate "official conduct" means "conduct relevant to fitness for office," and that the public-private issue is one of fact for the jury. In our view, however, the syllogistic manipulation of distinctions between "private sectors" and "public sectors," or matters of fact and matters of law, is of little utility in resolving questions of First Amendment protection. In Garrison v. Louisiana, supra, we reversed a conviction for criminal libel of a man who had charged that a group of state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to "racketeer influences." The Louisiana Supreme Court had held that these statements were not "criticisms . . . of the manner in which any one of the eight judges conducted his court when in session," but rather were accusations of crime and "personal attacks upon the integrity and honesty" of the judges. This Court rejected the proposed distinction: "Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these [401 U.S. 265, 274] characteristics may also affect the official's private character." 379 U.S., at 76 -77. Cf. Ocala Star-Banner Co. v. Damron, supra. The considerations that led us thus to reformulate the "official conduct" rule of New York Times in terms of "anything which might touch on an official's fitness for office" apply with special force to the case of the candidate. Indeed, whatever vitality the "official conduct" concept may retain with regard to occupants of public office, cf. Garrison, supra, at 72 n. 8, it is clearly of little applicability in the context of an election campaign. The principal activity of a candidate in our political system, his "office," so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of "purely private" concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry "Foul!" when an opponent or an industrious reporter attempts to demonstrate the contrary. 4 Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase "official conduct." [401 U.S. 265, 275] Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns, and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case. The trial judge presented the issue to the jury in the form of the question: "Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with official conduct of public officials?" This instruction, and the others like it, left the jury far more leeway to act as censors than is consistent with the protection of the First and Fourteenth Amendments in the setting of a political campaign. The application of the traditional concepts of tort law to the conduct of a political campaign is bound to raise dangers for freedom of speech and of the press. The reasonable-man standard of liability, for example, serves admirably the essential function of imposing an objective and socially acceptable limit on the freedom of an individual to act with relation to others. But under our system of government, we have chosen to afford protection even to "opinions that we loathe and believe to be fraught with death," Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting). A community that imposed legal liability on all statements in a political campaign deemed "unreasonable" by a jury would have abandoned the First Amendment as we know it. Likewise, a "preponderance of the evidence" burden of proof plays an indispensable role in the control of private negligence. But we have recognized that in the realm of political belief "the tenets of one man may seem the [401 U.S. 265, 276] rankest error to his neighbor," and that the advocates whom we protect may resort to "exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement," Cantwell v. Connecticut, 310 U.S. 296, 310 . It is simply inconsistent with this commitment to permit the imposition of liability for political speech that "more probably than otherwise" in the opinion of the jury "would not touch upon or be relevant" to a candidate's fitness for office. Cf. Speiser v. Randall, 357 U.S. 513, 525 -526; Smith v. California, 361 U.S. 147 . It is perhaps unavoidable that in the area of tension between the Constitution and the various state laws of defamation there will be some uncertainty as to what publications are and what are not protected. The mental element of "knowing or reckless disregard" required under the New York Times test, for example, is not always easy of ascertainment. "Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law." St. Amant v. Thompson, 390 U.S. 727, 730 -731. But there is a major, and in this case decisive, difference between liability based on a standard of care, and liability based on a judgment of the "relevance" of a past incident of criminal conduct to an official's or a candidate's fitness for office. A standard of care "can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood." Curtis Publishing Co. v. Butts, supra, at 153 (opinion of HARLAN, J.). A standard of "relevance," on the other hand, especially such a standard applied by a jury under the preponderance-of-the-evidence [401 U.S. 265, 277] test, is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those "vehement, caustic, and sometimes unpleasantly sharp attacks," New York Times, supra, at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail. We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office for purposes of application of the "knowing falsehood or reckless disregard" rule of New York Times Co. v. Sullivan. Since the jury in this case was permitted to make its own unguided determination that the charge of prior criminal activity was not "relevant," and that the New York Times standard was thus inapplicable, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. [For concurring opinion of MR. JUSTICE WHITE, see post, p. 301.] Footnotes [Footnote 1 The text of the portion of the column concerning the New Hampshire primary was as follows: "Political Snafu "Rock-ribbed Republican New Hampshire, whose ex-Gov. Sherman Adams was top kick in the White House for years and whose Sen. Styles Bridges is still top kick on the GOP side of the Senate, [401 U.S. 265, 267] is so fouled up in a primary snafu that the state may go Democratic this year. The primary verdict is due next Tuesday. "Even that able Senate stalwart, Styles Bridges, is restirring himself. He has nothing to worry about from his Republican opponent, but the Democrats have put up a dynamic Dartmouth professor, Herbert Hill, against him. The professor came within 11,000 votes of defeating Sherman Adams, lately of vicuna-coat fame, in the 1948 gubernatorial race. "Curiously, the Democratic primary has been cluttered with a motley assortment of candidates who have challenged Hill for the privilege of running against Bridges. That sly, old Republican disclaims any connection with it, but he appears pleased over the muddying of Democratic waters. "One of Hill's primary opponents Frank L. Sullivan, was released from the Grasmere County Work Farm just in time to file for the Senate. With a police record of no fewer than 19 convictions for drunkenness since 1945, he was serving his latest 90-day sentence. "Curious Call "To make sure he would get out in time to run for the Senate, a former small-time bootlegger and later U.S. Marshal, Alphonse Roy, telephoned the Grasmere warden about Sullivan. "Ralph LaVallee in charge of Grasmere, admitted to this column that he had received a telephone inquiry from Roy as to whether Sullivan would be released in time to file. But the warden denied another report that Roy had announced he was calling `on behalf of my friend Styles.' "`I don't want to get implicated in anything like that,' said LaVallee, `Roy didn't mention Senator Bridges.' "Sullivan happily got out of the workhouse in time to run for the most distinguished legislative body in the world. And who should turn up on the ballot but the same Alphonse Roy who was so eager to get him out of the clink. "Because of the peculiar population division of New Hampshire, the Irish Catholics may be inclined to vote for a Frank Sullivan while the French Canadians could be attracted by a name like [401 U.S. 265, 268] Alphonse Roy. The effect would be to cut down Herb Hill's chances. "Convicts For Senator "Two other curious candidates, who tried to run in the Democratic primary against Hill, were Harold P. McCarthy who has a record of nine convictions for drunkenness, assault, and brawling, and Clement P. Robinson Jr., who has a record of six brushes with the law for drunkenness and traffic violations. Robinson also received a 30-day suspended sentence for stealing two power lawnmowers and a conviction for the nonsupport of his wife and three children. "But at least Professor Hill managed to persuade the New Hampshire Ballot Law Commission into knocking McCarthy and Robinson off the ballot." [Footnote 2 The trial judge gave the jury the following definition of a "lawful occasion": "If the end to be attained by the publication is justifiable, that is, to give useful information to those who have a right and ought to know in order that they may act upon such information, the occasion is lawful. Where, however, there is merely the color of a lawful occasion and the defendant, instead of acting in good faith, [401 U.S. 265, 270] assumes to act for some justifiable end merely as a pretense to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretense had not been resorted to." The trial judge placed the burden of showing a "lawful occasion" on the defendants. [Footnote 3 One of the citations was to a Kansas decision which admirably stated the case for the inclusion of candidates within the rule: "[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counter-balance [401 U.S. 265, 272] the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged." Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908). [Footnote 4 A commentator writing in 1949 described the ambience as follows: "Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like have usually filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent. If actionable defamation is possible in this field, one might suppose that the chief energies of the courts, for some time after every political campaign, would be absorbed by libel and slander suits." Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875. Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins. * I concur in the judgments of the Court in this case and in No. 109 and No. 118, for the reasons set out in my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80 (1964). [401 U.S. 265, 278] However, I dissent from those portions of the opinions in this case and No. 118 which would permit these libel cases to be tried again under a different set of jury instructions. As I have stated before, "[I]t is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments." Curtis Publishing Co. v. Butts, supra, at 172 (separate opinion of BLACK, J.). [Footnote * [This opinion applies also to No. 109, Time, Inc. v. Pape, post, p. 279, and No. 118, Ocala Star Banner Co. et al. v. Damron, post, p. 295.] [401 U.S. 265, 279]

conservative

other

first_amendment

2003-072-01

United States Supreme Court HIBBS, DIRECTOR, ARIZONA DEPARTMENT OF REVENUE v. WINN et al.(2004) No. 02-1809 Argued: January 20, 2004Decided: June 14, 2004 Counsel of Record For Petitioner Hibbs: Joseph Kanefield Arizona Attorney General's Office Phoenix, AZ For Respondents Winn, et al.: Marvin S. Cohen Sacks Tierney PA Scottsdale, AZ Plaintiffs-respondents, Arizona taxpayers, filed suit in federal court against the Director of Arizona's Department of Revenue (Director) seeking to enjoin the operation of Ariz. Rev. Stat. Ann. §43-1089 on Establishment Clause grounds. Arizona's law authorizes an income-tax credit for payments to nonprofit "school tuition organizations" (STOs) that award scholarships to students in private elementary or secondary schools. Section 43-1089 provides that STOs may not designate schools that "discriminate on the basis of race, color, handicap, familial status or national origin," §43-1089(F), but does not preclude STOs from designating schools that provide religious instruction or give religion-based admissions preferences. The District Court granted the Director's motion to dismiss on the ground that the Tax Injunction Act (TIA), 28 U.S.C. §1341, barred the suit. The TIA prohibits lower federal courts from restraining "the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." The Ninth Circuit reversed, holding that the TIA does not bar federal-court actions challenging state tax credits. Held: 1. The Court rejects respondents' contention that the Director's certiorari petition was jurisdictionally untimely under 28 U.S.C. §2101(c) and this Court's Rule 13(3). Section 2101(c) instructs that a petition must be filed "within ninety days after the entry of ... judgment," and this Court's Rule 13(3) elaborates on that statute's instruction. More than 90 days elapsed between the date the Ninth Circuit first entered judgment and the date the Director's petition was filed. That time lapse, respondents assert, made the filing untimely under Rule 13(3)'s first sentence: "[T]he time to file ... runs from the date of entry of the judgment or order sought to be reviewed." Moreover, respondents submit, because no party petitioned for rehearing, the extended filing periods prescribed by the Rule's second sentence never came into play. This case, however, did not follow the typical course. The Ninth Circuit, on its own initiative, had recalled its mandate and ordered the parties to brief the question whether the case should be reheard en banc. That order, this Court holds, suspended the judgment's finality under §2101(c), just as a timely filed rehearing petition would or a court's appropriate decision to consider a late-filed rehearing petition, see Missouri v. Jenkins, 495 U.S. 33, 49. The Court of Appeals' order raised the question whether that court would modify the judgment and alter the parties' rights; thus, while the court-initiated briefing order was pending, there was no "judgment" to be reviewed. See, e.g., id., at 46. The Director's certiorari petition was timely under the statute because it was filed within 90 days of the date the Ninth Circuit denied rehearing en banc. Were this Court to read Rule 13 as the sole guide, so that only a party's rehearing petition could reset the statute's 90-day count, the Court would lose sight of the congressional objective underpinning §2101(c): An appellate court's final adjudication, Congress indicated, marks the time from which the filing period begins to run. The statute takes priority over the "procedural rules adopted by the Court for the orderly transaction of its business." Schacht v. United States, 398 U.S. 58, 64. Because the petition was timely under §2101(c), the Court has jurisdiction. Pp.5-8. 2.The TIA does not bar respondents' suit. Pp. 8-22. (a)To determine whether the TIA bars this litigation, it is appropriate, first, to identify the relief sought. Respondents seek prospective relief only: injunctive relief prohibiting the Director from allowing taxpayers to utilize the §43-1089 tax credit for payments to STOs that make religion-based tuition grants; a declaration that §43-1089, on its face and as applied, violates the Establishment Clause; and an order that the Director inform such STOs that all funds in their possession as of the order's date must be paid into the state general fund. Taking account of the prospective nature of the relief requested, the Court reaches the dispositive question whether respondents' suit seeks to "enjoin, suspend or restrain the assessment, levy or collection of any tax under State law," §1341. The answer turns on the meaning of the term "assessment" as employed in the TIA. For Internal Revenue Code (IRC) purposes, an assessment involves a "recording" of the amount the taxpayer owes the Government. 26 U.S.C. §6203. The Court does not focus on the word "assessment" in isolation, however, but follows "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. ___, ___. In the TIA and tax law generally, an assessment is closely tied to the collection of a tax, i.e., the assessment is the official recording of liability that triggers levy and collection efforts. Complementing the cardinal rule just stated, the rule against superfluities instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous. If, as the Director asserts, the term "assessment," by itself, signified the entire taxing plan, the TIA would not need the words "levy" or "collection"; the term "assessment," alone, would do all the necessary work. In briefing United States v. Galletti, 541 U.S. ___, the Government made clear that, under the IRC definition, an "assessment" serves as the trigger for levy and collection efforts. The Government did not describe "assessment" as synonymous with the entire taxation plan, nor disassociate the word from the company ("levy or collection") it keeps. Instead, and in accord with this Court's understanding, the Government related "assessment" to the term's collection-propelling function. Pp.8-11. (b)Congress modeled §1341 on earlier federal statutes of similar import, which in turn paralleled state provisions proscribing state-court actions to enjoin the collection of state and local taxes. Congress drew particularly on the Anti-Injunction Act (AIA), which bars "any court" from entertaining a suit brought "for the purpose of restraining the assessment or collection of any [federal] tax." 26 U.S.C. §7421(a). This Court has recognized, from the AIA's text, that the measure serves twin purposes: It responds to the Government's need to assess and collect taxes expeditiously with a minimum of preenforcement judicial interference; and it requires that the legal right to disputed sums be determined in a refund suit. E.g., Bob Jones Univ. v. Simon, 416 U.S. 725, 736. Lower federal courts have similarly comprehended §7421(a). Just as the AIA shields federal tax collections from federal-court injunctions, so the TIA shields state tax collections from federal-court restraints. In both 26 U.S.C. §7421(a) and 28 U.S.C. §1341, Congress directed taxpayers to pursue refund suits instead of attempting to restrain collections. Third-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs were outside Congress' purview. The TIA's legislative history shows that, in enacting the statute, Congress focused on taxpayers who sought to avoid paying their state tax bill by pursuing a challenge route other than the one specified by the taxing authority. Nowhere does the history announce a sweeping congressional direction to prevent federal-court interference with all aspects of state tax administration. The foregoing understanding of the TIA's purposes and legislative history underpins this Court's previous applications of that statute. See, e.g., California v. Grace Brethren Church, 457 U.S. 393, 408-409. Id., at 410, distinguished. Contrary to the Director's assertion, Arkansas v. Farm Credit Servs. of Central Ark., 520 U.S. 821; National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100; and Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, do not hold that state tax administration matters must be kept entirely free from lower federal-court "interference." Like Grace Brethren Church, all of those cases fall within §1341's undisputed compass: All involved plaintiffs who mounted federal litigation to avoid paying state taxes (or to gain a refund of such taxes). Federal-court relief, therefore, would have operated to reduce the flow of state tax revenue. Those decisions are not fairly portrayed cut loose from their secure, state-revenue-protective moorings. See, e.g., Grace Brethren Church, 457 U.S., at 410. This Court has interpreted and applied the TIA only in cases Congress wrote the statute to address, i.e., cases in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes. The Court has read harmoniously the §1341 instruction conditioning the jurisdictional bar on the availability of "a plain, speedy and efficient remedy" in state court. The remedy inspected in the Court's decisions was not designed for the universe of plaintiffs who sue the State, but was tailor-made for taxpayers. See, e.g., id., at 411. Pp.11-17. (c)In other federal courts as well, §1341 has been read to restrain taxpayers from instituting federal actions to contest their liability for state taxes, but not to stop third parties from pursuing constitutional challenges to state tax benefits in a federal forum. Further, numerous federal-court decisions--including decisions of this Court reviewing lower federal-court judgments--have reached the merits of third-party constitutional challenges to tax benefits without mentioning the TIA. See, e.g., Byrne v. Public Funds for Public Schools of New Jersey, 442 U.S. 907; Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218. Consistent with the decades-long understanding prevailing on this issue, respondents' suit may proceed without any TIA impediment. Pp.17-21. 307 F.3d 1011, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia and Thomas, JJ., joined. J. ELLIOTT HIBBS, DIRECTOR, ARIZONA DEPART-MENT OF REVENUE, PETITIONER v.KATHLEEN M. WINN etal. on writ of certiorari to the united states court of appeals for the ninth circuit [June 14, 2004] Justice Ginsburg delivered the opinion of the Court. Arizona law authorizes income-tax credits for payments to organizations that award educational scholarships and tuition grants to children attending private schools. See Ariz. Rev. Stat. Ann. §43-1089 (West Supp. 2003). Plaintiffs below, respondents here, brought an action in federal court challenging §43-1089, and seeking to enjoin its operation, on Establishment Clause grounds. The question presented is whether the Tax Injunction Act (TIA or Act), 28 U.S.C. §1341, which prohibits a lower federal court from restraining "the assessment, levy or collection of any tax under State law," bars the suit. Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede Arizona's receipt of tax revenues. Their suit, we hold, is not the kind §1341 proscribes. In decisions spanning a near half century, courts in the federal system, including this Court, have entertained challenges to tax credits authorized by state law, without conceiving of §1341 as a jurisdictional barrier. On this first occasion squarely to confront the issue, we confirm the authority federal courts exercised in those cases. It is hardly ancient history that States, once bent on maintaining racial segregation in public schools, and allocating resources disproportionately to benefit white students to the detriment of black students, fastened on tui-tion grants and tax credits as a promising means to circumvent Brown v. Board of Education, 347 U.S. 483 (1954). The federal courts, this Court among them, adjudicated the ensuing challenges, instituted under 42 U.S.C. §1983, and upheld the Constitution's equal protection requirement. See, e.g., Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233 (1964) (faced with unconstitutional closure of county public schools and tuition grants and tax credits for contributions to private segregated schools, District Court could require county to levy taxes to fund nondiscriminatory public schools), rev'g 322 F.2d 332, 343-344 (CA4 1963) (abstention required until state courts determine validity of grants, tax credits, and public-school closing), aff'g Allen v. County School Bd. of Prince Edward Cty., 198 F.Supp. 497, 503 (ED Va. 1961) (county enjoined from paying grants or providing tax credits to support private schools that exclude students based on race while public schools remain closed), and aff'g 207 F.Supp. 349, 355 (ED Va. 1962) (closure of public schools enjoined). See also Moton v. Lambert, 508 F.Supp. 367, 368 (ND Miss. 1981) (challenge to tax exemptions for racially discriminatory private schools may proceed in federal court). In the instant case, petitioner Hibbs, Director of Arizona's Department of Revenue, argues, in effect, that we and other federal courts were wrong in those civil-rights cases. The TIA, petitioner maintains, trumps §1983; the Act, according to petitioner, bars all lower federal-court interference with state tax systems, even when the challengers are not endeavoring to avoid a tax imposed on them, and no matter whether the State's revenues would be raised or lowered should the plaintiffs prevail. The alleged jurisdictional bar, which petitioner asserts has existed since the TIA's enactment in 1937, was not even imagined by the jurists in the pathmarking civil-rights cases just cited, or by the defendants in those cases, litigants with every interest in defeating federal-court adjudicatory authority. Our prior decisions command no respect, petitioner urges, because they constitute mere "sub silentio holdings." Reply Brief for Petitioner 8. We reject that assessment. We examine in this opinion both the scope of the term "assessment" as used in the TIA, and the question whether the Act was intended to insulate state tax laws from constitutional challenge in lower federal courts even when the suit would have no negative impact on tax collection. Concluding that this suit implicates neither §1341's conception of assessment nor any of the statute's underlying purposes, we affirm the judgment of the Court of Appeals. I Plaintiffs-respondents, Arizona taxpayers, filed suit in the United States District Court for the District of Arizona, challenging Ariz. Rev. Stat. Ann. §43-1089 (West Supp. 2003) as incompatible with the Establishment Clause. Section 43-1089 provides a credit to taxpayers who contribute money to "school tuition organizations" (STOs). An STO is a nonprofit organization that directs moneys, in the form of scholarship grants, to students enrolled in private elementary or secondary schools. STOs must disburse as scholarship grants at least 90 percent of contributions received, may allow donors to direct scholarships to individual students, may not allow donors to name their own dependents, must designate at least two schools whose students will receive funds, and must not designate schools that "discriminate on the basis of race, color, handicap, familial status or national origin." See §§43-1089(D)-(F). STOs are not precluded by Arizona's statute from designating schools that provide religious instruction or that give admissions preference on the basis of religion or religious affiliation. When taxpayers donate money to a qualified STO, §43-1089 allows them, in calculating their Arizona tax liability, to credit up to $500 of their donation (or $625 for a married couple filing jointly, §43-1089(A)(2)). In effect, §43-1089 gives Arizona taxpayers an election. They may direct $500 (or, for joint-return filers, $625) to an STO, or to the Arizona Department of Revenue. As long as donors do not give STOs more than their total tax liability, their $500 or $625 contributions are costless. The Arizona Supreme Court, by a 3-to-2 vote, rejected a facial challenge to §43-1089 before the statute went into effect. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999) (en banc). That case took the form of a special discretionary action invoking the court's original jurisdiction. See id., at 277, 972 P.2d, at 610. Kotterman, it is undisputed, has no preclusive effect on the instant as-applied challenge to §43-1089 brought by different plaintiffs. Respondents' federal-court complaint against the Director of Arizona's Department of Revenue (Director) alleged that §43-1089 "authorizes the formation of agencies that have as their sole purpose the distribution of State funds to children of a particular religious denomination or to children attending schools of a particular religious denomination." Complaint ¶ ;13, App. 10. Respondents sought injunctive and declaratory relief, and an order requiring STOs to pay funds still in their possession "into the state general fund." Id., at 7-8, App. 15. The Director moved to dismiss the action, relying on the TIA, which reads in its entirety: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. §1341. The Director did not assert that a federal-court order enjoining §43-1089 would interfere with the State's tax levy or collection efforts. He urged only that a federal injunction would restrain the "assessment" of taxes "under State law." Agreeing with the Director, the District Court held that the TIA required dismissal of the suit. App. to Pet. for Cert. 31. The Court of Appeals for the Ninth Circuit reversed, holding that "a federal action challenging the granting of a state tax credit is not prohibited by the [TIA]." Winn v. Killian, 307 F.3d 1011, 1017 (2002). Far from "adversely affect[ing] the state's ability to raise revenue," the Court of Appeals observed, "the relief requested by [respondents] ... would result in the state's receiving more funds that could be used for the public benefit." Id., at 1017, 1018. We granted certiorari, 539 U.S. 986 (2003), in view of the division of opinion on whether the TIA bars constitutional challenges to state tax credits in federal court. Compare 307 F.3d, at 1017, with ACLU Foundation v. Bridges, 334 F.3d 416, 421-423 (CA5 2003) (TIA bars federal action seeking to have any part of a State's tax system declared unconstitutional). We now affirm the judgment of the Ninth Circuit. II Before reaching the merits of this case, we must address respondents' contention that the Director's petition for certiorari was jurisdictionally untimely under 28 U.S.C. §2101(c) and our Rules. See Brief in Opposition 8-13. Section 2101(c) instructs that a petition for certiorari must be filed "within ninety days after the entry of ... judgment." This Court's Rule 13(3) elaborates: "The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment." Respondents assert that the Director's petition missed the Rule's deadlines: More than 90 days elapsed between the date the Court of Appeals first entered judgment and the date the petition was filed, rendering the filing untimely under the first sentence of the Rule; and because no party petitioned for rehearing, the extended periods prescribed by the Rule's second sentence never came into play. This case, however, did not follow the typical course. The Court of Appeals, on its own motion, recalled its mandate and ordered the parties to brief the question whether the case should be reheard en banc. That order, we conclude, suspended the judgment's finality under §2101(c), just as a timely filed rehearing petition would, or a court's appropriate decision to consider a late-filed rehearing petition. Compare Young v. Harper, 520 U.S. 143, 147, n. 1 (1997) (appeals court agreed to consider a late-filed rehearing petition; timeliness of petition for certiorari measured from date court disposed of rehearing petition), with Missouri v. Jenkins, 495 U.S. 33, 49 (1990) ("The time for applying for certiorari will not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time."). A timely rehearing petition, a court's appropriate decision to entertain an untimely rehearing petition, and a court's direction, on its own initiative, that the parties address whether rehearing should be ordered share this key characteristic: All three raise the question whether the court will modify the judgment and alter the parties' rights. See id., at 46 ("A timely petition for rehearing ... operates to suspend the finality of the ... court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties" (quoting Department of Banking of Neb. v. Pink, 317 U.S. 264, 266 (1942) (per curiam) (alterations in original))). In other words, "while [a] petition for rehearing is pending," or while the court is considering, on its own initiative, whether rehearing should be ordered, "there is no 'judgment' to be reviewed." Jenkins, 495 U.S., at 46. In this light, we hold that the Director's petition for a writ of certiorari was timely. When the Court of Appeals ordered briefing on the rehearing issue, 90 days had not yet passed from the issuance of the panel opinion. Because §2101(c)'s 90-day limit had not yet expired, the clock could still be reset by an order that left unresolved whether the court would modify its judgment. The court-initiated briefing order had just that effect. Because a genuinely final judgment is critical under the statute, we must treat the date of the court's order denying rehearing en banc as the date judgment was entered. The petition was filed within 90 days of that date and was thus timely under the statute. Were we to read Rule 13 as our sole guide, so that only a rehearing petition filed by a party could reset the statute's 90-day count, we would lose sight of the congressional objective underpinning §2101(c): An appellate court's final adjudication, Congress indicated, marks the time from which the period allowed for a certiorari petition begins to run. The statute takes priority over the "procedural rules adopted by the Court for the orderly transaction of its business." Schacht v. United States, 398 U.S. 58, 64 (1970). When court-created rules fail to anticipate unusual circumstances that fit securely within a federal statute's compass, the statute controls our decision. See, e.g., Kontrick v. Ryan, 540 U.S. ___, ___ (2004) (slip op., at 9) ("'[I]t is axiomatic' that [court-prescribed procedural rules] 'do not create or withdraw federal jurisdiction.'" (quoting Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978))). Because the petition for a writ of certiorari was timely under §2101(c), we have jurisdiction to decide whether the TIA bars respondents' suit. III To determine whether this litigation falls within the TIA's prohibition, it is appropriate, first, to identify the relief sought. Respondents seek prospective relief only. Specifically, their complaint requests "injunctive relief prohibiting [the Director] from allowing taxpayers to utilize the tax credit authorized by A.R.S. §43-1089 for payments made to STOs that make tuition grants to children attending religious schools, to children attending schools of only one religious denomination, or to children selected on the basis of their religion." Complaint 7, App. 15. Respondents further ask for a "declaration that A.R.S. §43-1089, on its face and as applied," violates the Establishment Clause "by affirmatively authorizing STOs to use State income-tax revenues to pay tuition for students attending religious schools or schools that discriminate on the basis of religion." Ibid. Finally, respondents seek "[a]n order that [the Director] inform all [such] STOs that ... all funds in their possession as of the date of this Court's order must be paid into the state general fund." Complaint 7-8, App. 15. Taking account of the prospective nature of the relief requested, does respondents' suit, in 28 U.S.C. §1341's words, seek to "enjoin, suspend or restrain the assessment, levy or collection of any tax under State law"? The answer to that question turns on the meaning of the term "assessment" as employed in the TIA.1 As used in the Internal Revenue Code (IRC), the term "assessment" involves a "recording" of the amount the taxpayer owes the Government. 26 U.S.C. §6203. The "assessment" is "essentially a bookkeeping notation." Laing v. United States, 423 U.S. 161, 170, n.13 (1976). Section 6201(a) of the IRC authorizes the Secretary of the Treasury "to make ... assessments of all taxes ... imposed by this title." An assessment is made "by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary." §6203.2 See also M. Saltzman, IRS Practice and Procedure ¶ ;10.02, pp.10-4 to 10-7 (2d ed. 1991) (when Internal Revenue Service signs "summary list" of assessment to record amount of tax liability, "the official act of assessment has occurred for purposes of the Code").3 We do not focus on the word "assessment" in isolation, however. Instead, we follow "the cardinal rule that statutory language must be read in context [since] a phrase gathers meaning from the words around it." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. ___, ___ (2004) (slip op., at 13-14) (internal quotation marks omitted). In §1341 and tax law generally, an assessment is closely tied to the collection of a tax, i.e., the assessment is the official recording of liability that triggers levy and collection efforts. The rule against superfluities complements the principle that courts are to interpret the words of a statute in context. See 2A N. Singer, Statutes and Statutory Construction §46.06, pp.181-186 (rev. 6th ed. 2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant ...." (footnotes omitted)). If, as the Director asserts, the term "assessment," by itself, signified "[t]he entire plan or scheme fixed upon for charging or taxing," Brief for Petitioner 12 (quoting Webster's New International Dictionary of the English Language 166 (2d ed. 1934)), the TIA would not need the words "levy" or "collection"; the term "assessment," alone, would do all the necessary work. Earlier this Term, in United States v. Galletti, 541 U.S. ___ (2004), the Government identified "two important consequences" that follow from the IRS' timely tax assessment: "[T]he IRS may employ administrative enforcement methods such as tax liens and levies to collect the outstanding tax," see 26 U.S.C. §§6321-6327, 6331-6344; and "the time within which the IRS may collect the tax either administratively or by a 'proceeding in court' is extended [from 3 years] to 10 years after the date of assessment," see §§6501(a), 6502(a). Brief for United States in United States v. Galletti, O. T. 2003, No. 02-1389, pp.15-16. The Government thus made clear in briefing Galletti that, under the IRC definition, the tax "assessment" serves as the trigger for levy and collection efforts. The Government did not describe the term as synonymous with the entire plan of taxation. Nor did it disassociate the word "assessment" from the company ("levy or collection") that word keeps.4 Instead, and in accord with our understanding, the Government related "assessment" to the term's collection-propelling function. IV Congress modeled §1341 upon earlier federal "statutes of similar import," laws that, in turn, paralleled state provisions proscribing "actions in State courts to enjoin the collection of State and county taxes." S. Rep. No. 1035, 75th Cong., 1st Sess., 1 (1937) (hereinafter S.Rep.). In composing the TIA's text, Congress drew particularly on an 1867 measure, sometimes called the Anti-Injunction Act (AIA), which bars "any court" from entertaining a suit brought "for the purpose of restraining the assessment or collection of any [federal] tax." Act of Mar. 2, 1867, ch. 169, §10, 14 Stat. 475, now codified at 26 U.S.C. §7421(a). See Jefferson County v. Acker, 527 U.S. 423, 434-435 (1999). While §7421(a) "apparently has no recorded legislative history," Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974), the Court has recognized, from the AIA's text, that the measure serves twin purposes: It responds to "the Government's need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference"; and it "'require[s] that the legal right to the disputed sums be determined in a suit for refund,'" ibid. (quoting Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962)).5 Lower federal courts have similarly comprehended §7421(a). See, e.g., McGlotten v. Connally, 338 F.Supp. 448, 453-454 (DC 1972) (three-judge court) (§7421(a) does not bar action seeking to enjoin income-tax exemptions to fraternal orders that exclude nonwhites from membership, for in such an action, plaintiff "does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States" (footnote omitted)); Tax Analysts and Advocates v. Shultz, 376 F.Supp. 889, 892 (DC 1974) (§7421(a) does not bar challenge to IRS revenue ruling allowing contributors to political candidate committees to avoid federal gift tax on contributions in excess of $3,000 ceiling; while §7421(a) "precludes suits to restrain the assessment or collection of taxes," the proscription does not apply when "plaintiffs seek not to restrain the Commissioner from collect-ing taxes, but rather to require him to collect additional taxes according to the mandates of the law." (emphases in original)).6 Just as the AIA shields federal tax collections from federal-court injunctions, so the TIA shields state tax collections from federal-court restraints. In both 26 U.S.C. §7421(a) and 28 U.S.C. §1341, Congress directed taxpayers to pursue refund suits instead of attempting to restrain collections. Third-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs, as McGlotten, 338 F.Supp., at 453-454, and Tax Analysts, 376 F.Supp., at 892, explained, were outside Congress' purview. The TIA's legislative history is not silent in this regard. The Act was designed expressly to restrict "the jurisdiction of the district courts of the United States over suits relating to the collection of State taxes." S. Rep., p.1. Specifically, the Senate Report commented that the Act had two closely related, state-revenue-protective objectives: (1) to eliminate disparities between taxpayers who could seek injunctive relief in federal court--usually out-of-state corporations asserting diversity jurisdiction--and taxpayers with recourse only to state courts, which generally required taxpayers to pay first and litigate later; and (2) to stop taxpayers, with the aid of a federal injunction, from withholding large sums, thereby disrupting state government finances. Id., at 1-2; see R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1173 (5th ed. 2003) (citing Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 522-523, and nn.28-29, 527 (1981)). See also Jefferson County, 527 U.S., at 435 (observing that the TIA was "shaped by state and federal provisions barring anticipatory actions by taxpayers to stop the tax collector from initiating collection proceedings"). In short, in enacting the TIA, Congress trained its attention on taxpayers who sought to avoid paying their tax bill by pursuing a challenge route other than the one specified by the taxing authority. Nowhere does the legislative history announce a sweeping congressional direction to prevent "federal-court interference with all aspects of state tax administration." Brief for Petitioner 20; post, at 11.7 The understanding of the Act's purposes and legislative history set out above underpins this Court's previous applications of the TIA. In California v. Grace Brethren Church, 457 U.S. 393 (1982), for example, we recognized that the principal purpose of the TIA was to "limit drastically" federal-court interference with "the collection of [state] taxes." Id., at 408-409 (quoting Rosewell, 401 U.S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part)). The complainants in Grace Brethren Church were several California churches and religious schools. They sought federal-court relief from an unemployment compensation tax that state law imposed on them. 457 U.S., at 398. Their federal action, which bypassed state remedies, was exactly what the TIA was designed to ward off. The Director and the dissent endeavor to reconstruct Grace Brethren Church as precedent for the proposition that the TIA totally immunizes from lower federal-court review "all aspects of state tax administration, and not just interference with the collection of revenue." Brief for Petitioner 20; see post, at 11-12. The endeavor is unavailing given the issue before the Court in Grace Brethren Church and the context in which the words "state tax administration" appear. The Director invokes several other decisions alleged to keep matters of "state tax administration" entirely free from lower federal-court "interference." Brief for Petitioner 17-21; accord post, at 13. Like Grace Brethren Church, all of them fall within §1341's undisputed compass: All involved plaintiffs who mounted federal litigation to avoid paying state taxes (or to gain a refund of such taxes). Federal-court relief, therefore, would have operated to reduce the flow of state tax revenue. See Arkansas v. Farm Credit Servs. of Central Ark., 520 U.S. 821, 824 (1997) (corporations chartered under federal law claimed exemption from Arkansas sales and income taxation); National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 584 (1995) (action seeking to prevent Oklahoma from collecting taxes State imposed on nonresident motor carriers); Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 105-106 (1981) (taxpayers, alleging unequal taxation of real property, sought, inter alia, damages measured by alleged tax overassessments); Rosewell, 450 U.S., at 510 (state taxpayer, alleging her property was inequitably assessed, refused to pay state taxes).8 Our prior decisions are not fairly portrayed cut loose from their secure, state-revenue-protective moorings. See, e.g., Grace Brethren Church, 457 U.S., at 410 ("If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency." (quoting Ledesma, 401 U.S., at 128, n. 17 (Brennan, J., concurring in part and dissenting in part) (emphases added))); Rosewell, 450 U.S., at 527-528 ("The compelling nature of these considerations[identified by Justice Brennan in Perez] is underscored by the dependency of state budgets on the receipt of local tax revenues.... We may readily appreciate the difficulties encountered by the county should a substantial portion of its rightful tax revenue be tied up in injunction actions.").9 In sum, this Court has interpreted and applied the TIA only in cases Congress wrote the Act to address, i.e., cases in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes. See supra, at 13-14. We have read harmoniously the §1341 instruction conditioning the jurisdictional bar on the availability of "a plain, speedy and efficient remedy" in state court. The remedy inspected in our decisions was not one designed for the universe of plaintiffs who sue the State. Rather, it was a remedy tailor-made for taxpayers. See, e.g., Rosewell, 450 U.S., at 528 ("Illinois' legal remedy that provides property owners paying property taxes under protest a refund without interest in two years is a 'plain, speedy and efficient remedy' under the [TIA]"); Grace Brethren Church, 457 U.S., at 411 ("[A] state-court remedy is 'plain, speedy and efficient' only if it 'provides the taxpayer with a 'full hearing and judicial determination' at which she may raise any and all constitutional objections to the tax.'" (quoting Rosewell, 450 U.S., at 514)).10 V In other federal courts as well, §1341 has been read to restrain state taxpayers from instituting federal actions to contest their liability for state taxes, but not to stop third parties from pursuing constitutional challenges to tax benefits in a federal forum. Relevant to the distinction between taxpayer claims that would reduce state revenues and third-party claims that would enlarge state receipts, Seventh Circuit Judge Easterbrook wrote trenchantly: "Although the district court concluded that §1341 applies to any federal litigation touching on the subject of state taxes, neither the language nor the legislative history of the statute supports this interpretation. The text of §1341 does not suggest that federal courts should tread lightly in issuing orders that might allow local governments to raise additional taxes. The legislative history ... shows that §1341 is designed to ensure that federal courts do not interfere with states' collection of taxes, so long as the taxpayers have an opportunity to present to a court federal defenses to the imposition and collection of the taxes. The legislative history is filled with concern that federal judgments were emptying state coffers and that corporations with access to the diversity jurisdiction could obtain remedies unavailable to resident taxpayers. There was no articulated concern about federal courts' flogging state and local governments to collect additional taxes." Dunn v. Carey, 808 F.2d 555, 558 (1986) (emphasis added). Second Circuit Judge Friendly earlier expressed a similar view of §1341: "The [TIA's] context and the legislative history lead us to conclude that, in speaking of 'collection,' Congress was referring to methods similar to assessment and levy, e.g., distress or execution ... that would produce money or other property directly, rather than indirectly through a more general use of coercive power. Congress was thinking of cases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon them...." Wells v. Malloy, 510 F.2d 74, 77 (1975) (emphasis added). See also Inre Jackson County, 834 F.2d 150, 151-152 (CA8 1987) (observing that "§1341 has been held to be inapplicable to efforts to require collection of additional taxes, as opposed to efforts to inhibit the collection of taxes").11 Further, numerous federal-court decisions--including decisions of this Court reviewing lower federal-court judgments--have reached the merits of third-party constitutional challenges to tax benefits without mentioning the TIA. See, e.g., Byrne v. Public Funds for Public Schools of New Jersey, 442 U.S. 907 (1979), summarily aff'g 590 F.2d 514 (CA3 1979) (state tax deduction for taxpayers with children attending nonpublic schools violates Establishment Clause), aff'g 444 F.Supp. 1228 (NJ 1978); Franchise Tax Board of California v. United Americans for Public Schools, 419 U.S. 890 (1974) (summarily affirming district-court judgment striking down state statute that provided income-tax reductions for taxpayers sending children to nonpublic schools); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (state tax benefits for parents of children attending nonpublic schools violates Establishment Clause), rev'g in relevant part 350 F.Supp. 655 (SDNY 1972) (three-judge court); Grit v. Wolman, 413 U.S. 901 (1973), summarily aff'g Kosydar v. Wolman, 353 F.Supp. 744, 755-756 (SD Ohio 1972) (three-judge court) (state tax credits for expenses relating to children's enrollment in nonpublic schools violate Establishment Clause); Finlator v. Powers, 902 F.2d 1158 (CA4 1990) (state statute exempting Christian Bibles, but not holy books of other religions or other books, from state tax violates Establishment Clause); Luthens v. Bair, 788 F.Supp. 1032 (SD Iowa 1992) (state law authorizing tax benefit for tuition payments and textbook purchases does not violate Establishment Clause); Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (Minn. 1978) (three-judge court) (state law allowing parents of public or private school students to claim part of tuition and transportation expenses as tax deduction does not violate Establishment Clause).12 * * * In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a §1341 objection that, according to the petitioner in this case, should have caused us to order dismissal of the action for want of jurisdiction. See Mueller v. Allen, 463 U.S. 388 (1983) (state tax deduction for parents who send their children to parochial schools does not violate Establishment Clause); Byrne, 442 U.S. 907; United Americans for Public Schools, 419 U.S. 890; Committee for Public Ed. & Religious Liberty, 413 U.S. 756; Wolman, 413 U.S. 901; Griffin, 377 U.S. 218. Consistent with the decades-long understanding prevailing on this issue, respondents' suit may proceed without any TIA impediment.13 For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed. J. ELLIOTT HIBBS, DIRECTOR, ARIZONA DEPART-MENT OF REVENUE, PETITIONER v.KATHLEEN M. WINN etal. on writ of certiorari to the united states court of appeals for the ninth circuit [June 14, 2004] Justice Stevens, concurring. In Part IV of his dissent, Justice Kennedy observes that "years of unexamined habit by litigants and the courts" do not lessen this Court's obligation correctly to interpret a statute. Post, at 15. It merits emphasis, however, that prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied. See BedRoc Limited, LLC v. United States, 541 U.S. ___, ___ (2004) (slip op., at 3) (Stevens, J., dissenting); Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 100-105 (1994) (Stevens, J., dissenting); Commissioner v. Fink, 483 U.S. 89, 101-103 (1987) (Stevens, J., dissenting); Runyon v. McCrary, 427 U.S. 160, 189-192 (1976) (Stevens, J., concurring). In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins. The Court's fine opinion, which I join without reservation, is consistent with these views. J. ELLIOTT HIBBS, DIRECTOR, ARIZONA DEPART-MENT OF REVENUE, PETITIONER v.KATHLEEN M. WINN etal. on writ of certiorari to the united states court of appeals for the ninth circuit [June 14, 2004] Justice Kennedy, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. In this case, the Court shows great skepticism for the state courts' ability to vindicate constitutional wrongs. Two points make clear that the Court treats States as diminished and disfavored powers, rather than merely applies statutory text. First, the Court's analysis of the Tax Injunction Act (TIA or Act), 28 U.S.C. §1341, contrasts with a literal reading of its terms. Second, the Court's assertion that legislative histories support the conclusion that "[t]hird-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs . . . were outside Congress' purview" in enacting the TIA and the anti-injunction provision on which the TIA was modeled, ante, at 12, is not borne out by those sources, as previously recognized by the Court. In light of these points, today's holding should probably be attributed to the concern the Court candidly shows animates it. See ante, at 1-2 (noting it was the federal courts that "upheld the Constitution's equal protection requirement" when States circumvented Brown v. Board of Education, 347 U.S. 483 (1954), by manipulating their tax laws). The concern, it seems, is that state courts are second rate constitutional arbiters, unequal to their federal counterparts. State courts are due more respect than this. Dismissive treatment of state courts is particularly unjustified since the TIA, by express terms, provides a federal safeguard: The Act lifts its bar on federal court intervention when state courts fail to provide "a plain, speedy, and efficient remedy." §1341. In view of the TIA's text, the congressional judgment that state courts are qualified constitutional arbiters, and the respect state courts deserve, I disagree with the majority's superseding the balance the Act strikes between federal and state court adjudication. I agree with the majority that the petition for certiorari was timely under 28 U.S.C. §2101(c), see ante, at 5-8, and so submit this respectful dissent on the merits of the decision. I Today is the first time the Court has consideredwhether the TIA bars federal district courts from granting injunctive relief that would prevent States from giving citizens statutorily mandated state tax credits. There are cases, some dating back almost 50 years, which proceeded as if the jurisdictional bar did not apply to tax credit challenges; but some more recent decisions have said the bar is applicable. Compare, e.g., Mueller v. Allen, 463 U.S. 388 (1983); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218 (1964), with, e.g., ACLU Foundation of La. v. Bridges, 334 F.3d 416 (CA5 2003); Inre Gillis, 836 F.2d 1001 (CA6 1988). While unexamined custom favors the first position, the statutory text favors the latter. In these circumstances a careful explanation for the conclusion is necessary; but in the end the scope and purpose of the Act should be understood from its terms alone. The question presented--whether the TIA bars the District Court from granting injunctive relief against the tax credit--requires two inquiries. First, the term assessment, as used in §1341, must be defined. Second, we must determine if an injunction prohibiting the Director from allowing the credit would enjoin, suspend, or restrain an assessment. The word assessment in the TIA is not isolated from its use in another federal statute. The TIA was modeled on the anti-injunction provision of the Internal Revenue Code (Code), 26 U.S.C. §7421(a). See Jefferson County v. Acker, 527 U.S. 423, 434 (1999). That provision specifies, and has specified since 1867, that federal courts may not restrain or enjoin an "assessment or collection of any [federal] tax." 26 U.S.C. §7421(a) (first codified by Act of Mar. 2, 1867, ch. 169, §10, 14 Stat. 475). The meaning of the term assessment in this Code provision is discernible by reference to other Code sections. Title 26 U.S.C. §1 et seq. Chapter 63 of Title 26 addresses the subject of assessments and sheds light on the meaning of the term in the Code. Section 6201 first instructs that "[t]he Secretary [of the Internal Revenue Service] is . . . required to make the . . . assessments of all taxes . . . imposed by this title. . ." 26 U.S.C. §6201(a). Further it provides, "[t]he Secretary shall assess all taxes determined by the taxpayer or by the Secretary . . ." §6201(a)(1). Section 6203 in turn sets forth a method for making an assessment: "The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary." Taken together, the provisions of Title 26 establish that an assessment, as that term is used in §7421(a), must at the least encompass the recording of a taxpayer's ultimate tax liability. This is what the taxpayer owes the Government. See also Laing v. United States, 423 U.S. 161, 170, n. 13 (1976) ("The 'assessment,' essentially a bookkeeping notation, is made when the Secretary or his delegate establishes an account against the taxpayer on the tax rolls"). Whether the Secretary or his delegate (today, the Commissioner) makes the recording on the basis of a taxpayer's self-reported filing form or instead chooses to rely on his own calculation of the taxpayer's liability (e.g., via an audit) is irrelevant. The recording of the liability on the Government's tax rolls is itself an assessment. The TIA was modeled on the anti-injunction provision, see Jefferson County, supra; it incorporates the same terminology employed by the provision; and it employs that terminology for the same purpose. It is sensible, then, to interpret the TIA's terms by reference to the Code's use of the term. Cf. Lorillard v. Pons, 434 U.S. 575, 581 (1978) ("[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute"). The Court of Appeals, which concluded that an assessment was the official estimate of the value of income or property used to calculate a tax or the imposition of a tax on someone, Winn v. Killian, 307 F.3d 1011, 1015 (CA9 2002), placed principal reliance for its interpretation on a dictionary definition. That was not entirely misplaced; but unless the definition is considered in the context of the prior statute, the advantage of that statute's interpretive guidance is lost. Furthermore, the court defined the term in an unusual way. It relied on a dictionary that was unavailable when the TIA was enacted; it relied not on the definition of the term under consideration, "assessment," but on the definition of the term's related verb form, "assess;" and it examined only a portion of that terms' definition. In the dictionary used by the Court of Appeals, the verb is defined in two ways not noted by the court. One of the alternative definitions is quite relevant--"(2) to fix or determine the amount of (damages, a tax, a fine, etc.)." Compare 307 F.3d, at 1015, with Random House Dictionary of the English Language 90 (1979). Further, "Had [the panel] looked in a different lay dictionary, [it] would have found a definition contrary to the one it preferred, such as 'the entire plan or scheme fixed upon for charging or taxing.' . . . Had the panel considered tax treatises and law dictionaries . . . it would have found much in accord with this broader definition. . . . Even the federal income tax code supports a broad reading of 'assessment.'" Winn v. Killian, 321 F.3d 911, 912 (2003) (Kleinfeld, J., dissenting from denial of rehearing en banc) (footnote omitted). Guided first by the Internal Revenue Code, an assessment under §1341, at a minimum, is the recording of taxpayers' liability on the State's tax rolls. The TIA, though a federal statute that must be interpreted as a matter of federal law, operates in a state-law context. In this respect, the Act must be interpreted so as to apply evenly to the 50 various state-law regimes and to the various recording schemes States employ. It is therefore irrelevant whether state officials record taxpayer liabilities with their own pen in a specified location, by collecting and maintaining taxpayers' self-reported filing forms, or in some other manner. The recordkeeping that equates to the determination of taxpayer liability on the State's tax rolls is the assessment, whatever the method. The Court seems to agree with this. See ante, at 8-11. The dictionary definition of assessment provides further relevant information. Contemporaneous dictionaries from the time of the TIA's enactment define assessment in expansive terms. They would broaden any understanding of the term, and so the Act's bar. See, e.g., Webster's New International Dictionary 139 (1927) (providing three context relevant definitions for the term assessment: It is the act of apportioning or determining an amount to be paid; a valuation of property for the purpose of taxation; or the entire plan or scheme fixed upon for charging or taxing). See also United States v. Galletti, 541 U.S. --, -- (2004) (slip op., at 7-8) (noting that under the Code the term assessment refers not only to recordings of tax liability but also to "the calculation . . . of a tax liability," including self-calculation done by the taxpayer). The Court need not decide the full scope of the term assessment in the TIA, however. For present purposes, a narrow definition of the term suffices. Applying the narrowest definition, the TIA's literal text bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liability on its tax rolls, whether the recordings are made by self-reported taxpayer filing forms or by a State's calculation of taxpayer liability. The terms "enjoin, suspend, or restrain" require little scrutiny. No doubt, they have discrete purposes in the context of the TIA; but they also have a common meaning. They refer to actions that restrict assessments to varying degrees. It is noteworthy that the term "enjoin" has not just its meaning in the restrictive sense but also has meaning in an affirmative sense. The Black's Law Dictionary current at the TIA's enactment gives as a definition of the term, "to require; command; positively direct." Black's Law Dictionary 663 (3d ed. 1933). That definition may well be implicated here, since an order invalidating a tax credit would seem to command States to collect taxes they otherwise would not collect. The parties, however, proceed on the assumption that enjoin means to bar. It is unobjectionable for the Court to make the assumption too, leaving the broader definition for later consideration. Respondents argue the TIA does not bar the injunction they seek because even after the credit is enjoined, the Director will be able to record and enforce taxpayers' liabilities. See Brief for Respondents 16. In fact, respondents say, with the credit out of the way the Director will be able to record and enforce a higher level of liability and so profit the State. Ibid. ("The amount of tax payable by some taxpayers would increase, but that can hardly be characterized as an injunction or restraint of the assessment process"). The argument, however, ignores an important part of the Act: "under State law." 28 U.S.C. §1341 ("The district courts shall not enjoin, suspend or restrain the assessment . . . of any tax under State law"). The Act not only bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liabilities altogether; but it also bars them from enjoining, suspending, or restraining a State from recording the taxpayer liability that state law mandates. Section 43-1089 is state law. It is an integral part of the State's tax statute; it is reflected on state tax forms; and the State Supreme Court has held that it is part of the calculus necessary to determine tax liability. See Kotterman v. Killian, 193 Ariz. 273, 279, 285, 972 P.2d 606, 612, 618 (1999). A recording of a taxpayer's liability under state law must be made in accordance with §43-1089. The same can be said with respect to each and every provision of the State's tax law. To order the Director not to record on the State's tax rolls taxpayer liability that reflects the operation of §43-1089 (or any other state tax law provision for that matter) would be to bar the Director from recording the correct taxpayer liability. The TIA's language bars this relief and so bars this suit. The Court tries to avoid this conclusion by saying that the recordings that constitute assessments under §1341 must have a "collection-propelling function," ante, at 11, and that the recordings at issue here do not have such a function. See also ante, at 11, n.4 ("[T]he dissent would disconnect the word [assessment] from the enforcement process"). That is wrong. A recording of taxpayer liability on the State's tax rolls of course propels collection. In most cases the taxpayer's payment will accompany his filing, and thus will accompany the assessment so that no literal collection of moneys is necessary. As anyone who has paid taxes must know, however, if owed payment were not included with the tax filing, the State's recording of one's liability on the State's rolls would certainly cause subsequent collection efforts, for the filing's recording (i.e., the assessment) would propel collection by establishing the State's legal right to the taxpayer's moneys. II The majority offers prior judicial interpretations of the Code's similarly worded anti-injunction provision to support its contrary conclusions about the statutory text. See ante, at 11-12. That this Court and other federal courts have allowed nontaxpayer suits challenging tax credits to proceed in the face of the anti-injunction provision is not at all controlling. Those cases are quite distinguishable. Had the plaintiffs in those cases been barred from suit, there would have been no available forum at all for their claims. See McGlotten v. Connally, 338 F.Supp. 448, 453-454 (DC 1972) (three-judge court) ("The preferred course of raising [such tax exemption and deduction] objections in a suit for refund is not available. In this situation we cannot read the statute to bar the present suit"). See also Tax Analysts and Advocates v. Shultz, 376 F.Supp. 889, 892 (DC 1974) ("Since plaintiffs are not seeking to restrain the collection of taxes, and since they cannot obtain relief through a refund suit, [26 U.S.C.] §7421(a) does not bar the injunctive relief they seek"). The Court ratified those decisions only insofar as they relied on this limited rationale as the basis for an exception to the statutory bar on adjudication. See South Carolina v. Regan, 465 U.S. 367, 373 (1984) (holding the anti-injunction provision inapplicable to a State's challenge to the constitutionality of a federal tax exemption provision, §103(a) of the Code (which exempts from a taxpayer's gross income the interest earned on the obligations of any State) as amended by §310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 596, because "the [anti-injunction provision] was not intended to bar an action where . . . Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax"). Even that strict limitation was not strict enough for four Members of the Court, one of whom noted "the broad sweep of the [a]nti-[i]njunction [provision]." 465 U.S., at 382 (Blackmun, J., concurring in judgment). The other three Justices went further still. They would have allowed an exception to the anti-injunction provision's literal bar on nontaxpayer suits challenging tax exemption provisions only if due process rights were at stake. See 465 U.S., at 394 (O'Connor, J., concurring in judgment) ("Bob Jones University's recognition that the complete inaccessibility of judicial review might implicate due process concerns provides absolutely no basis for crafting an exception" to the anti-injunction act for a plaintiff who has "no due process right to review of its claim in a judicial forum"). In contrast to the anti-injunction provision, the TIA on its own terms ensures an adequate forum for claims it bars. The TIA specially exempts actions that could not be heard in state courts by providing an exception for instances "where a plain, speedy, and efficient remedy may [not] be had in the courts of [the] State." 28 U.S.C. §1341. The TIA's text thus already incorporates the check that Regan concluded could be read into the anti-injunction provision even though "[t]he [anti-injunction provision]'s language 'could scarcely be more explicit' in prohibiting nontaxpayer suits like this one." 416 U.S. 725, 736 (1974)). The practical effect is that a literal reading of the TIA provides for federal district courts to stand at the ready where litigants encounter legal or practical obstacles to challenging state tax credits in state courts. And this Court, of course, stands at the ready to review decisions by state courts on these matters. The Court does not discuss this codified exception, yet the clause is crucial. It represents a congressional judgment about the balance that should exist between the respect due to the States (for both their administration of tax schemes and their courts' interpretation of tax laws) and the need for constitutional vindication. To ignore the provision is to ignore that Congress has already balanced these interests. Respondents admit they would be heard in state court. Indeed a quite similar action previously was heard there. See Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999). As a result, the TIA's exception (akin to that recognized by Regan) does not apply. To proceed as if it does is to replace Congress' balancing of the noted interests with the Court's. III The Court and respondents further argue that the TIA's policy purposes and relatedly the federal anti-injunction provision's policy purposes (as discerned from legislative histories) justify today's holding. The two Acts, they say, reflect a unitary purpose: "In both . . . Congress directed taxpayers to pursue refund suits instead of attempting to restrain [tax] collections." Ante, at 13. See also ante, at 14 (concluding that the Act's underlying purpose is to bar suits by "taxpayers who sought to avoid paying their tax bill"); see also Brief for Respondents 18-20. This purpose, the Court and respondents say, shows that the Act was not intended to foreclose relief in challenges to tax credits. The proposition rests on the premise that the TIA's sole purpose is to prevent district court orders that would decrease the moneys in state fiscs. Because the legislative histories of the Acts are not carefully limited in the manner that this reading suggests, the policy argument against a literal application of the Act's terms fails. Taking the federal anti-injunction provision first, as has been noted before, "[its] history expressly reflects the congressional desire that all injunctive suits against the tax collector be prohibited." Regan, 465 U.S., at 387 (O'Connor, J., concurring in judgment). The provision responded to "the grave dangers which accompany intrusion of the injunctive power of the courts into the administration of the revenue." Id., at 388. It "generally precludes judicial resolution of all abstract tax controversies," whether brought by a taxpayer or a nontaxpayer. Id., at 392; see also id., at 387-392 (reviewing the legislative history of the anti-injunction provision, its various amendments, and related enactments). Thus, the provision's object is not just to bar suits that might "interrupt 'the process of collecting . . . taxes,'" but "[s]imilarly, the language and history evidence a congressional desire to prohibit courts from restraining any aspect of the tax laws' administration." Id., at 399. The majority's reading of the TIA's legislative history is also inconsistent with the interpretation of this same history in the Court's earlier cases. The Court has made clear that the TIA's purpose is not only to protect the fisc but also to protect the State's tax system administration and tax policy implementation. California v. Grace Brethren Church, 457 U.S. 393 (1982), is a prime example. In Grace Brethren Church the Court held that the TIA not only bars actions by individuals to stop tax collectors from collecting moneys (i.e., injunctive suits) but also bars declaratory suits. See id., at 408-410. The Court explained that permitting declaratory suits to proceed would "defea[t] the principal purpose of the Tax Injunction Act: 'to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.'" Id., at 408-409 (quoting Rosewell v. LaSalle Nat. Bank, 450 U.S. 503 (1981)). It continued: "'If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.'" Grace Brethren Church, supra, at 410 (quoting with approval Perez v. Ledesma, 401 U.S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part)). While this, of course, demonstrates that protecting the state fisc from damage is part of the TIA's purpose, it equally shows that actions that would throw the "state tax administration . . . into disarray" also implicate the Act and its purpose. The Court's concern with preventing administrative disarray puts in context its explanation that the TIA's principal concern is to limit federal district court interference with the "collection of taxes." The phrase, in this context, refers to the operation of the whole tax collection system and the implementation of entire tax policy, not just a part of it. While an order interfering with a specific collection suit disrupts one of the most essential aspects of a State's tax system, it is not the only way in which federal courts can disrupt the State's tax system: "[T]he legislative history of the Tax Injunction Act demonstrates that Congress worried not so much about the form of relief available in the federal courts, as about divesting the federal courts of jurisdiction to interfere with state tax administration." Grace Brethen Church, supra, at 409, n. 22. The Court's decisions in Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981), National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582 (1995) (NPTC), and Rosewell, supra, make the same point. Though the majority says these cases support its holding because they "involved plaintiffs who mounted federal litigation to avoid paying state taxes," ante, at 14, the language of these cases is too clear to be ignored and is contrary to the Court's holding today. In Fair Assessment, the Court observed that "[t]he [TIA] 'has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.' This last consideration was [its] principal motivating force." 429 U.S. 68, 73 (1976)) (other citation omitted)). In NPTC, the Court said, "Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the [TIA] in 1937 is one manifestation of this aversion." 515 U.S., at 586 (summing up this aversion, generated also from principles of comity and federalism, as creating a "background presumption that federal law generally will not interfere with administration of state taxes," id., at 588). In Rosewell, the Court described the Act's language as "broad" and "prophylactic." 450 U.S., at 524 (majority opinion of Brennan, J.). See also ibid. (the TIA was "passed to limit federal-court interference in state tax matters"). The Act is designed to respect not only the administration of state tax systems but also state court authority to say what state law means. "[F]ederal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Grace Brethren Church, supra, at 410 (internal quotation marks omitted). See also Rosewell, supra, at 527. This too establishes that the TIA's purpose is not solely to ensure that the State's fisc is not decreased. There would be only a diminished interest in allowing state courts to say what the State's tax statutes mean if the Act protected just the state fisc. The TIA protects the responsibility of the States and their courts to administer their own tax systems and to be accountable to the citizens of the State for their policies and decisions. The majority objects that "there is no disagreement to the meaning of" state law in this case, ante, at 15, n.5. As an initial matter, it is not clear that this is a fair conclusion. The litigation in large part turns on what state law requires and whether the product of those requirements violates the Constitution. More to the point, however, even if there were no controversy about the statutory framework the Arizona tax provision creates, the majority's ruling has implications far beyond this case and will most certainly result in federal courts in other States and in other cases being required to interpret state tax law in order to complete their review of challenges to state tax statutes. Our heretofore consistent interpretation of the Act's legislative history to prohibit interference with state tax systems and their administration accords with the direct, broad, and unqualified language of the statute. The Act bars all orders that enjoin, suspend, or restrain the assessment of any tax under state law. In effecting congressional intent we should give full force to simple and broad proscriptions in the statutory language. Because the TIA's language and purpose are comprehensive, arguments based on congressional silence on the question whether the TIA applies to actions that increase moneys a state tax system collects are of no moment. Contra, Winn, 307 F.3d, at 1017-1018 (relying on Dunn v. Carey, 808 F.2d 555, 558 (CA7 1986)); see also ante, at 18 (relying on Dunn). Whatever weight one gives to legislative histories, silence in the legislative record is irrelevant when a plain congressional declaration exists on a matter. "[W]hen terms are unambiguous we may not speculate on probabilities of intention." Insurance Co. v. Ritchie, 5 Wall. 541, 545 (1867). Here, Congress has said district courts are barred from disrupting the State's tax operations. It is immaterial whether the State's collection is raised or lowered. A court order will thwart and replace the State's chosen tax policy if it causes either result. No authority supports the proposition that a State lacks an interest in reducing its citizens' tax burden. It is a troubling proposition for this Court to proceed on the assumption that the State's interest in limiting the tax burden on its citizens to that for which its law provides is a secondary policy, deserving of little respect from us. IV The final basis on which both the majority and respondents rest is that years of unexamined habit by litigants and the courts alike have resulted in federal courts' entertaining challenges to state tax credits. See ante, at 19-20 (citing representative cases). While we should not reverse the course of our unexamined practice lightly, our obligation is to give a correct interpretation of the statute. We are not obliged to maintain the status quo when the status quo is unfounded. The exercise of federal jurisdiction does not and cannot establish jurisdiction. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38 (1952). "[T]his Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio." Id., at 38. In this respect, the present case is no different than Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88 (1994). The case presented the question whether we had jurisdiction to consider a certiorari petition filed by the Federal Election Commission (FEC), and not by the Solicitor General on behalf of the FEC. The Court held that it lacked jurisdiction. See id., at 99. Though that answer seemed to contradict the Court's prior practices, the Court said: "Nor are we impressed by the FEC's argument that it has represented itself before this Court on several occasions in the past without any question having been raised about its authority to do so . . . . The jurisdiction of this Court was challenged in none of these actions, and therefore the question is an open one before us." Id., at 97 (citations omitted). See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 63, n. 4 (1989) ("'[T]his Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.' Hagans v. Lavine, 415 U.S. 528, 535, n. 5 (1974)" (alteration in original)). These cases make clear that our failure to consider a question hardly equates to a thing's being decided. Contra, ante, at 2 (Stevens, J., concurring) (referring to prior silences of the courts with respect to the TIA as stare decisis and settled interpretation). As a consequence, I would follow the statutory language. * * * After today's decision, "[n]ontaxpaying associations of taxpayers, and most other nontaxpayers, will now be allowed to sidestep Congress' policy against [federal] judicial resolution of abstract [state] tax controversies." Regan, 465 U.S., at 394 (O'Connor, J., concurring in judgment). This unfortunate result deprives state courts of the first opportunity to hear such cases and to grant the relief the Constitution requires. For the foregoing reasons, with respect, I dissent. FOOTNOTESFootnote 1State taxation, for §1341 purposes, includes local taxation. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4237, pp. 643-644 (2d ed. 1988) ("Local taxes are imposed under authority of state law and the courts have held that the Tax Injunction Act applies to them."); R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1173 (5th ed. 2003) ("For purposes of the Act, local taxes have uniformly been held to be collected 'under State law.'"). Footnote 2Section 301.6203-1 of the Treasury Regulations states that an assessment is accomplished by the "assessment officer signing the summary record of assessment," which, "through supporting records," provides "identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment." 26 CFR §301.6203-1 (2003). Footnote 3The term "assessment" is used in a variety of ways in tax law. In the property-tax setting, the word usually refers to the process by which the taxing authority assigns a taxable value to real or personal property. See, e.g., F. Schoettle, State and Local Taxation: The Law and Policy of Multi-Jurisdictional Taxation 799 (2003) ("ASSESSMENT--The process of putting a value on real or personal property for purposes of a tax to be measured as a percentage of property values. The valuation is ordinarily done by a government official, the 'assessor' or 'tax assessor,' who will sometimes hire a private professional to do the actual valuations."); Black's Law Dictionary 112 (7th ed. 1999) (defining "assessment" as, inter alia: "Official valuation of property for purposes of taxation .--Also termed tax assessment. Cf. appraisal."). See also 5 R. Powell, Real Property §39.02 (M. Wolf ed. 2000). To calculate the amount of property taxes owed, the tax assessor multiplies the assessed value by the appropriate tax rate. See, e.g., R. Werner, Real Estate Law 534 (11th ed. 2002). Income taxes, by contrast, are typically self-assessed in the United States. As anyone who has filed a tax return is unlikely to forget, the taxpayer, not the taxing authority, is the first party to make the relevant calculation of income taxes owed. The word "self-assessment," however, is not a technical term; as IRC §6201(a) indicates, the Internal Revenue Service executes the formal act of income-tax assessment. Footnote 4The dissent is of two minds in this regard. On the one hand, it twice suggests that a proper definition of the term "assessment," for §1341 purposes, is "the entire plan or scheme fixed upon for charging or taxing." Post, at 5-6. On the other hand, the dissent would disconnect the word from the enforcement process ("levy or collection") that "assessment" sets in motion. See post, at 6. Footnote 5That Congress had in mind challenges to assessments triggering collections, i.e., attempts to prevent the collection of revenue, is borne out by the final clause of 26 U.S.C. §7421(a), added in 1966: "whether or not such person is the person against whom such tax was assessed" (emphasis added). Footnote 6The dissent incorrectly ranks South Carolina v. Regan, 465 U.S. 367 (1984), with McGlotten and Tax Analysts and Advocates. Post, at 8-9. See also post, at 11. The latter decisions, as the text notes, did not seek to stop the collection of taxes. In contrast, in South Carolina v. Regan, the State's suit aimed to reduce federal revenue receipts: South Carolina sought to enjoin as a violation of its Tenth Amendment rights not "a federal tax exemption," post, at 8, but federal income taxation of the interest on certain state-issued bonds. The Court held in that unique suit that §7421(a) did not bar this Court's exercise of original jurisdiction over the case. 465 U.S., at 381. Footnote 7The language of the TIA differs significantly from that of the Johnson Act, which provides in part: "The district courts shall not enjoin, suspend or restrain the operation of, or compliance with," public-utility rate orders made by state regulatory bodies. 28 U.S.C. §1342 (emphasis added). The TIA does not prohibit interference with "the operation of, or compliance with" state tax laws; rather, §1341 proscribes interference only with those aspects of state tax regimes that are needed to produce revenue--i.e., assessment, levy, and collection. Footnote 8 Petitioner urges, and the dissent agrees, that the TIA safeguards another vital state interest: the authority of state courts to determine what state law means. Brief for Petitioner 21; post, at 13-14. Respondents, however, have not asked the District Court to interpret any state law--there is no disagreement as to the meaning of Ariz. Rev. Stat. Ann. §43-1089 (West Supp. 2003), only about whether, as applied, the State's law violates the Federal Constitution. See supra, at 3-4. That is a question federal courts are no doubt equipped to adjudicate. Footnote 9We note, furthermore, that this Court has relied upon "principles of comity," Brief for Petitioner 26, to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 107-108 (1981) (Missouri taxpayers sought damages for increased taxes caused by alleged overassessments); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 296-299 (1943) (plaintiffs challenged Louisiana's unemployment compensation tax). Footnote 10Far from "ignor[ing]" the "plain, speedy and efficient remedy" proviso, as the dissent charges, post, at 10, we agree that this "codified exception" is key to a proper understanding of the Act. The statute requires the State to provide taxpayers with a swift and certain remedy when they resist tax collections. An action dependent on a court's discretion, for example, would not qualify as a fitting taxpayer's remedy. Cf. supra, at 4. Footnote 11In conflict with sister Circuits, and at odds with its own prior opinions, the Fifth Circuit, in ACLU Foundation v. Bridges, 334 F.3d 416 (2003), recently construed the TIA in the way the Director does here. Bridges involved a challenge to tax exemptions for religious activities in several Louisiana statutes. The District Court, in line with earlier Fifth Circuit decisions, held that the TIA did not apply because the plaintiff was not seeking to restrain the "assessment, levy or collection" of state taxes, but to eliminate allegedly unconstitutional tax exemptions. Reversing, the Fifth Circuit ruled that the TIA bars any federal suit seeking to have any portion of a State's tax system declared unconstitutional. Id., at 421-423. The Director and the United States refer to four other federal-court decisions lending some support for their view that, for §1341 purposes, no line should be drawn between challenges that would reduce revenues and attacks that might augment collections. See Reply Brief for Petitioner 8-9 (citing Kraebel v. New York City Dept. of Housing Preservation and Development, 959 F.2d 395 (CA2 1992); Colonial Pipeline Co. v. Collins, 921 F.2d 1237 (CA11 1991); Inre Gillis, 836 F.2d 1001 (CA6 1988); United States Brewers Assn., Inc. v. Perez, 592 F.2d 1212 (CA1 1979)). See also Brief for United States as Amicus Curiae 14-15. In two of the cases, taxpayers were seeking relief aimed at lightening their own tax burdens. Kraebel held that §1341 barred a taxpayer's constitutional challenge to a property-tax exemption and abatement scheme. 959 F.2d, at 400. Colonial Pipeline held that a taxpayer's suit seeking a court-ordered redistribution of Georgia's advalorem tax system, which might have reduced plaintiff's tax bill, implicated §1341's jurisdictional bar. 921 F.2d, at 1243. The court did observe, broadly: "[The] requested relief, if granted,... would clearly conflict with the principle underlying the [TIA] that the federal courts should generally avoid interfering with the sensitive and peculiarly local concerns surrounding state taxation schemes." Id., at 1242. Gillis, unlike Kraebel and Colonial Pipeline, was a third-party action. The court declined to decide "[w]hether the [TIA] actually does bar the availability of such relief," but noted that a suit seeking to enhance state revenues may nonetheless fall within §1341's bar because "the Act is not, by its own language, limited to the collection of taxes." 836 F.2d, at 1005 (emphasis in original). Finally, Perez concerned the Butler Act, 48 U.S.C. §872, a TIA analog applicable to Puerto Rico. Ordering dismissal of the case for want of jurisdiction, the court rested its decision not on statutory construction, but on "underl[ying]" comity concerns, stating: "[A]n order of a federal court requiring Commonwealth officials to collect taxes which its legislature has not seen fit to impose on its citizens strikes us as a particularly inappropriate involvement in a state's management of its fiscal operations." 592 F.2d, at 1214-1215. Footnote 12In school desegregation cases, as a last resort, federal courts have asserted authority to direct the imposition of, or increase in, local tax levies, even in amounts exceeding the ceiling set by state law. See Missouri v. Jenkins, 495 U.S. 33, 57 (1990); Liddell v. Missouri, 731 F.2d 1294, 1320 (CA8 1984) (en banc); cf. Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233 (1964). Controversial as such a measure may be, see Jenkins, 495 U.S., at 65-81 (Kennedy, J., concurring in part and concurring in judgment), it is noteworthy that §1341 was not raised in those cases by counsel, lower courts, or this Court on its own motion. Footnote 13In confirming that cases of this order may be brought in federal court, we do not suggest that "state courts are second rate constitutional arbiters." Post, at 1. Instead, we underscore that adjudications of great moment discerning no §1341 barrier, see supra, at 1-3, cannot be written off as reflecting nothing more than "unexamined custom," post, at 2, or unthinking "habit," post, at 15.

liberal

public_entity

federalism

1967-004-01

United States Supreme Court WOOD v. UNITED STATES(1967) No. 27 Argued: Decided: October 16, 1967 Petitioner before trial filed an affidavit requesting the District Court to assign counsel pursuant to the Criminal Justice Act but the court, without adequate inquiry into petitioner's financial ability to retain counsel, disapproved the request. The Court of Appeals, after granting leave to appeal in forma pauperis, affirmed. Held: The trial court should have explored the possibility that petitioner could afford only partial payment for the services of trial counsel and that counsel be appointed on that basis as permitted by the Act. Certiorari granted; 373 F.2d 894, vacated and remanded. Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Robert G. Maysack for the United States. PER CURIAM. Petitioner was found guilty by the United States District Court for the Northern District of Georgia of refusing to report for civilian employment, in violation of 12 of the Universal Military Training and Service Act, 62 Stat. 622, 50 U.S.C. App. 462. Before trial he filed an affidavit with the court requesting assigned counsel pursuant to the Criminal Justice Act, 18 U.S.C. 3006A. The court considered the affidavit, questioned petitioner and disapproved the request. The Court of Appeals for the Fifth Circuit granted leave to appeal in forma pauperis, assigned counsel to assist petitioner in his appeal and affirmed the conviction. Petitioner seeks a writ of certiorari. Before this Court the Solicitor General has conceded that the record does not convincingly show that there [389 U.S. 20, 21] was adequate inquiry into the question of petitioner's financial ability to retain counsel, in that "the trial court should have explored the possibility that petitioner could afford only partial payment for the services of trial counsel and that counsel be appointed on that basis, as the Criminal Justice Act permits (see 18 U.S.C. 3006 (A) (c) and (f))." The Solicitor General urges, however, that there is no basis for believing that petitioner suffered prejudice from the District Court's error, an argument we find unpersuasive. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment is vacated and the case is remanded to the Court of Appeals for the Fifth Circuit for reconsideration in light of the Solicitor General's Memorandum and the relevant criteria of the Criminal Justice Act. MR. JUSTICE BLACK dissents. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. [389 U.S. 20, 22]

liberal

public_entity

criminal_procedure

1961-049-01

United States Supreme Court BENZ v. NEW YORK STATE THRUWAY(1962) No. 234 Argued: Decided: March 19, 1962 Since it now appears that this case presents no substantial federal question, the writ of certiorari is dismissed as improvidently granted. Reported below: 9 N. Y. 2d 486, 174 N. E. 2d 727. Lauren D. Rachlin argued the cause and filed briefs for petitioner. Julius L. Sackman argued the cause for respondent. With him on the briefs were Louis J. Lefkowitz, Attorney General of New York, and Paxton Blair, Solicitor General. PER CURIAM. We granted certiorari in this case, 368 U.S. 886 , to decide whether the State of New York could, consistently with the Fourteenth Amendment, assert sovereign immunity in a suit brought by petitioner to reform on grounds of mutual mistake, or to rescind for fraud in the inducement, an agreement fixing compensation for land taken under the power of eminent domain. Contrary to our initial impression of the case on the basis of the petition for certiorari, plenary consideration has satisfied us that the New York Court of Appeals decided no more than that this suit could not be maintained in the Supreme Court of the State of New York because exclusive jurisdiction over litigation of this character had been vested in the New York Court of Claims. The case then involves only a matter relating to "the distribution of jurisdiction in the state courts," and presents no substantial federal question. E. g., Honeyman v. Hanan, 302 U.S. 375 . [369 U.S. 147, 148] Since the representative of the State Attorney General advised us on oral argument that the Attorney General will recommend passage of a bill by the State Legislature relieving petitioner from the operation of the statute of limitations governing proceedings in the New York Court of Claims, * we assume that she will be free to present her claims in the appropriate state forum. The writ is dismissed as improvidently granted. MR. JUSTICE BLACK dissents. MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case. [Footnote * REPORTER'S NOTE: Such a bill became a law on April 29, 1962, N. Y. Laws 1962, c. 940.] [369 U.S. 147, 149]

conservative

public_entity

judicial_power

1977-040-01

United States Supreme Court CALIFANO v. TORRES(1978) No. 77-78 Argued: Decided: February 27, 1978 The provisions of the Social Security Act making benefits for aged, blind, and disabled persons under the Supplemental Security Income (SSI) program payable only to residents of the United States, defined as the 50 States and the District of Columbia, are not unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The constitutional right to travel does not embrace any such doctrine as would require payment of SSI benefits under such circumstances. No. 77-78, 426 F. Supp. 1106, and No. 77-126, reversed. [Footnote * Together with No. 77-126, Califano, Secretary of Health, Education, and Welfare v. Colon et al., also on appeal from the same court. PER CURIAM. Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these [435 U.S. 1, 2] cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed. 1 I One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 86 Stat. 1465, 42 U.S.C. 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 49 Stat. 620, 42 U.S.C. 301 et seq.; Aid to the Blind, 49 Stat. 645, 42 U.S.C. 1201 et seq.; Aid to the Disabled, 64 Stat. 555, 42 U.S.C. 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U.S.C. 1381 et seq. The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611 (f) of the Act, as set forth in 42 U.S.C. 1382 (f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines "the United States" as "the 50 States and the District of Columbia." 1614 (e), as set forth in 42 U.S.C. 1382c (e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs. 2 Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved [435 U.S. 1, 3] to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico. 3 Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held 1611 (f) and 1614 (e) unconstitutional as applied to Torres. Torres v. Mathews, 426 F. Supp. 1106. 4 Soon after that decision appellees Colon and Vega also sued in the Puerto Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico. 5 [435 U.S. 1, 4] II In Shapiro v. Thompson, 394 U.S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, "the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents." Id., at 261. In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now. 6 Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each [435 U.S. 1, 5] State under our Constitution to enact laws uniformly applicable to all of its residents. If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute "is entitled to a strong presumption of constitutionality." Mathews v. De Castro, 429 U.S. 181, 185 (1976). "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." Jefferson v. Hackney, 406 U.S. 535, 546 (1972). See also Califano v. Jobst, 434 U.S. 47, 53 -54; Califano v. Goldfarb, 430 U.S. 199, 210 (1977); Helvering v. Davis, 301 U.S. 619, 640 (1937). 7 The judgments are reversed. So ordered. MR. JUSTICE BRENNAN would affirm. MR. JUSTICE MARSHALL would note probable jurisdiction and set these cases for oral argument. Footnotes [Footnote 1 This Court's jurisdiction is based on 28 U.S.C. 1252. [Footnote 2 The SSI benefits are significantly larger. [Footnote 3 The record does not show whether the appellees applied for benefits under the pre-existing programs while in Puerto Rico. [Footnote 4 The complaint had also relied on the equal protection component of the Due Process Clause of the Fifth Amendment in attacking the exclusion of Puerto Rico from the SSI program. Acceptance of that claim would have meant that all otherwise qualified persons in Puerto Rico are entitled to SSI benefits, not just those who received such benefits before moving to Puerto Rico. But the District Court apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it. Puerto Rico has a relationship to the United States "that has no parallel in our history." Examining Board v. Flores de Otero, 426 U.S. 572, 596 (1976). Cf. Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Downes v. Bidwell, 182 U.S. 244 (1901). See Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L. J. 219 (1967); Hector, Puerto Rico: Colony or Commonwealth?, 6 N. Y. U. J. Int'l L. & Pol. 115 (1973). [Footnote 5 The opinion of the District Court is unreported. [Footnote 6 The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U.S. 745, 757 -758 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105 -106 (1971). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505 -506 (1964). As such this "right," the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U.S. 1 (1965). For purposes of this opinion we may assume that there is a virtually unqualified constitutional right to travel between Puerto Rico and any of the 50 States of the Union. [Footnote 7 At least three reasons have been advanced to explain the exclusion of persons in Puerto Rico from the SSI program. First, because of the unique tax status of Puerto Rico, its residents do not contribute to the public treasury. Second, the cost of including Puerto Rico would be extremely great - an estimated $300 million per year. Third, inclusion in the SSI program might seriously disrupt the Puerto Rican economy. Department of Health, Education, and Welfare, Report of the Undersecretary's Advisory Group on Puerto Rico, Guam and the Virgin Islands 6 (Oct. 1976). [435 U.S. 1, 6]

conservative

person

civil_rights

1997-086-01

United States Supreme Court AMERICAN TELEPHONE & TELEGRAPH CO. v. CENTRAL OFFICE TELEPHONE, INC.(1998) No. 97-679 Argued: March 23, 1998Decided: June 15, 1998 Respondent purchases "bulk" communications services from longdistance providers, such as petitioner AT&T, and resells them to its customers. Petitioner, as a common carrier under the Communications Act of 1934, must file with the Federal Communications Commission (FCC) "tariffs" containing all its "charges" for interstate services and all "classifications, practices and regulations affecting such charges," 47 U.S.C. § 203(a). A carrier may not "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such [tariff]." §203(c). The FCC requires carriers to sell long-distance services to resellers under the same rates, terms, and conditions as apply to other customers. In 1989, petitioner agreed to sell respondent a long-distance service, which, under the parties' written subscription agreements, would be governed by the rates, terms, and conditions in the appropriate AT&T tariffs. Respondent soon experienced problems with the service it received, and withdrew from the contract before the expiration date. Meanwhile, it had sued petitioner in Federal District Court, asserting, inter alia , state-law claims for breach of contract and for tortious interference with contractual relations (viz., respondent's contracts with its customers), the latter claim derivative of the former. Respondent alleged that petitioner had promised and failed to deliver various service, provisioning, and billing options in addition to those set forth in the tariff, and that petitioner's conduct was willful, so that consequential damages were available under the tariff. The Magistrate Judge rejected petitioner's argument that the claims were pre-empted by §203's filed-tariff requirements; he declined, however, to instruct on punitive damages for the tortious-interference claim. The jury found for respondent and awarded damages. The Ninth Circuit affirmed the judgment, but reversed the Magistrate Judge's failure to instruct on punitive damages and remanded for a trial on that aspect of the case. Held: The Communications Act's filed-tariff requirements pre-empt respondent's state-law claims. Pp. 7-14. (a) Sections 203(a) and (c) are modeled after similar provisions of the Interstate Commerce Act (ICA), and the "filed-rate doctrine" associated with the ICA tariff provisions applies to the Communications Act as well. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229 -231. Under that doctrine, the rate a carrier duly files is the only lawful charge. Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97 . Even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. Kansas City Southern R. Co. v. Carl, 227 U.S. 639, 653 . That this case involves services and billing rather than rates or ratesetting does not make the filed-rate doctrine inapplicable. Since rates have meaning only when one knows the services to which they are attached, any claim for excessive rates can be couched as a claim for inadequate services and vice versa. The Communications Act recognizes this in the §203(a) and (c) requirements, and the cases decided under the ICA make it clear that discriminatory privileges are not limited to discounted rates, see, e.g., United States v. Wabash R. Co., 321 U.S. 403, 412 -413. Pp. 7-10. (b) This Court's filed-rate cases involving special services claims cannot be distinguished on the ground that the services they involved should have been included in the tariff. That is precisely the case here. Even provisioning and billing are "covered" by the applicable tariff. Nor does it make any difference that petitioner provided the same services, without charge, to other customers; that only tends to show that petitioner acted unlawfully with regard to the other customers as well. Pp. 10-11. (c) The analysis used in evaluating respondent's contract claim applies with equal force to its wholly derivative tortious-interference claim. The Communications Act's saving clause does not dictate a different result. It copies the ICA's saving clause, which has long been held to preserve only those rights that are not inconsistent with the statutory filed-rate requirements. Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 163 . Finally, respondent's argument that petitioner's willful misconduct makes the relief awarded here consistent with the tariff is rejected. Pp. 12-14. 108 F. 3d 981, reversed. Cite as: ____ U. S. ____ (1998)3 Syllabus SCALIA , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and KENNEDY , SOUTER , THOMAS , GINSBURG , and BREYER , JJ., joined. REHNQUIST , C. J., filed a concurring opinion. STEVENS , J., filed a dissenting opinion. O'CONNOR , J., took no part in the consideration or decision of the case. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. U.S. Supreme Court No. 97-679 AMERICAN TELEPHONE AND TELEGRAPH COM- PANY, PETITIONER v. CENTRAL OFFICE TELE- PHONE, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 15, 1998] JUSTICE SCALIA delivered the opinion of the Court. Respondent Central Office Telephone, Inc. (COT), a reseller of long-distance communications services, sued petitioner AT&T, a provider of long-distance communications services, under state law for breach of contract and tortious interference with contract. Petitioner is regulated as a common carrier under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. The issue before us is whether the federal filed-tariff requirements of the Communications Act pre-empt respondent's state-law claims. I Respondent purchases "bulk" long-distance servicesvolume-discounted services designed for large customersfrom long-distance providers, and resells them to smaller customers. Like many other resellers in the telecommunications industry, respondent does not own or operate facilities of its own; it is known as a "switchless reseller," which is the industry nomenclature for arbitrageur. Of course respondent passes along only a portion of the bulkpurchase discount to its aggregated customers, and retains the remaining discount as profit. Petitioner provides long-distance services and, as a common carrier under the Communications Act, §153(h), must observe certain substantive requirements imposed by that law. Section 203 of the Act requires that common carriers file "schedules" (also known as "tariffs") containing all their "charges" for interstate services and all "classifications, practices and regulations affecting such charges." §203(a). The Federal Communications Commission (FCC), which is the agency responsible for enforcing the Act, requires carriers to sell long-distance services to resellers such as respondent under the same rates, terms, and conditions as apply to other customers. Prior to 1989, petitioner had developed a type of longdistance service known as Software Defined Network (SDN), designed to meet the needs of large companies with offices in multiple locations. SDN established a "virtual private network" that allowed employees in different locations to communicate easily. For example, an employee in Washington could call a co-worker in Denver simply by dialing a four-digit extension. SDN customers, in exchange for a commitment to purchase large volumes of long-distance communication time, received this service at a rate much below what it would otherwise cost. Several changes to SDN in 1989 made the service extremely attractive to resellers, such as respondent, who aggregate smaller customers. Petitioner developed the capability to allow customers to use ordinary ("switched access") telephone lines to connect locations to their SDN networks. Previously, locations had to be connected over special "dedicated access" lines, which are direct lines from a location's telephone system to petitioner's longdistance network, bypassing the switches of the local exchange carrier. Dedicated access involves large fixed costs, so it is cost-effective only when a location originates a large volume of calls. Switched access, in contrast, does not entail additional high fixed costs, so it is better suited to small users and hence to resellers. Petitioner also instituted two pricing promotions for SDN in 1989: additional discounts from the basic SDN rates for customers making large usage and duration commitments, and waiver of installation charges for customers making multiyear commitments (subject to penalties for early termination). Petitioner also added a new billing option. In addition to network billing, whereby petitioner prepares a single bill that applies the tariffed rate to all usage at all locations, petitioner started to offer multilocation billing (MLB), which allows the SDN volume discounts to be apportioned between an SDN customer and individual locations on its network, with the proportion being chosen by the customer. Under this option, petitioner sends bills directly to the customer's individual locations (which, in the case of resellers, means to the reseller's customers) but the customer (or reseller) remains responsible for all payments. The tariff provides, however, that petitioner is not responsible for the allocation of charges. See AT&T Tariff FCC No. 1, §6.2.4 (1986), App. to Brief for Petitioner 24a. Attracted by these changes, in October 1989, respondent approached petitioner regarding its possible purchase of SDN. LaDonna Kisor, a sales representative in petitioner's Portland, Oregon office, described the service and gave respondent literature on SDN. She predicted that petitioner could establish an initial SDN network for respondent in four to five months, and could thereafter add new locations within 30 days of receiving an order. Respondent subscribed to a tariffed switched-access SDN plan under which the up-front installation charges would be waived and respondent would receive a 17 to 20% discount off basic SDN rates in exchange for a 4-year commitment to purchase two million minutes of service annu ally. Respondent also requested MLB. Petitioner confirmed respondent's order, stating that respondent would obtain SDN " 'pursuant to the rates, terms and conditions in AT&T's [FCC Tariff No.1],' " and that the provisions of the tariff, " 'including limitations on AT&T's liabilities, shall govern your and AT&T's obligations and liabilities with respect to the service and options you have selected.' " Brief for Petitioner 14. Respondent accepted these terms in writing on October 30, 1989. By February 1990, it had become apparent that the demand for SDN exceeded petitioner's expectationslargely because of the switchless resellers attracted to the service. Petitioner could not fill the volumes of switchedaccess orders as rapidly as dedicated access orders, or as quickly as petitioner's personnel had predicted. Accordingly, Ms. Kisor notified respondent that it would take up to 90 days to add new locations after the initial SDN was established. She suggested placing respondent's customers with another AT&T service, the Multilocation Calling Plan (MLCP), until they could be placed on SDN. Respondent agreed to this, and ordered MLCP. Again, respondent signed a letter confirming that MLCP " 'is provided under the terms and conditions stated in AT&T's Tariff F. C. C. Nos. 1 and 2.' " Brief for Appellant in Nos. 9436116, 94-36156 (CA9), p. 15. Ms. Kisor informed respondent that its initial SDN network was functioning in April 1990. At that point, respondent elected to increase to a larger SDN volume commitment in order to qualify for a larger discount. In placing this order, respondent signed a form stating that the SDN service " 'WILL BE GOVERNED BY THE RATES AND TERMS AND CONDITIONS IN THE APPROPRIATE AT&T TARIFFS.' " Brief for Petitioner 14-15. Respondent then began reselling SDN to its own customers and placing orders with petitioner that required petitioner to treat respondent's customers as if they were new loca tions on a corporate SDN. Almost from the outset, respondent experienced problems with the network, including delays in provisioning (the filling of orders) and in billing. An additional billing problem was especially damaging to respondent: respondent's customers received bills reflecting 100% of the discount instead of the 50% respondent selected. These problems continued, and in October 1990, they led respondent to switch to network billing. Although respondent continued to resell SDN, it was ultimately unable to meet its usage commitment for the first period in which it was applicable. In September 1992, respondent notified petitioner that it was terminating its SDN service effective September 30, 1992, with 18 months remaining on its contract. Meanwhile, on November 27, 1991, respondent had filed suit against petitioner in the United States District Court for the District of Oregon. The complaint contained a variety of claims, none of which arose under the Communications Act, and ultimately two state-law claims went to trial: (1) breach of contract (including breach of an implied covenant of good faith and fair dealing); and (2) tortious interference with contractual relations (viz., respondent's contracts with its customers). Respondent's state-law claims rested on the allegation that its contracts with petitioner were not limited by petitioner's tariff but also included certain understandings respondent's president derived from reading petitioner's brochures and talking with its representatives. According to respondent, petitioner promised various service, provisioning, and billing options in addition to those set forth in the tariff. Respondent also claimed that petitioner violated its state-law implied duty of good faith and fair dealing by taking actions that undermined the purpose of the contract for respondent, which was to purchase SDN services for resale at a profit. The tortious interference claim was derivative of the contract claim. Respondent asserted that, because respondent promised certain benefits of SDN to its customers, and because petitioner provided competing services, any intentional violation of petitioner's contractual duties constituted tortious interference with respondent's relationship with its customers. Respondent also asserted that, since petitioner's conduct was willful, consequential damages were available under the terms of the tariff. Petitioner filed a counterclaim to recover $200,000 in unpaid tariffed charges from April to October 1990, and to obtain the termination charges that respondent did not pay in 1992. Throughout the proceedings in District Court, petitioner argued that respondent's state-law contract and tort claims were pre-empted by the filed-tariff requirements of §203 of the Act. The Magistrate Judge rejected this argument and instructed the jury to consider not only the written subscription agreements, but also any statements made or documents furnished before the parties signed the agreements " 'if you find that the parties intended that those statements or written materials form part of their agreements.' " Brief for Petitioner 18. The Magistrate Judge also instructed the jury that it could not find for respondent on its contract claims unless it found that petitioner engaged in willful misconduct. He declined to instruct on punitive damages for the tortious-interference claim. The jury found for respondent on its state-law claims, rejected petitioner's counterclaim, and awarded respondent $13 million in lost profits. The Magistrate Judge reduced the judgment to $1.154 million, which represented the lost profits respondent claimed during the period before it canceled SDN on September 30, 1992; he found that there was no competent evidence for lost profits after that date. The Court of Appeals, over a dissent by Judge Brunetti, affirmed the judgment but reversed the Magistrate Judge's failure to instruct on punitive damages and remanded for a trial on that aspect of the case. 108 F. 3d 981 (CA9 1997). We granted certiorari to determine whether the federal filed-rate requirements of §203 preempt respondent's claims. 520 U. S ___ (1997). II Section 203(a) of the Communications Act requires every common carrier to file with the FCC "schedules," i.e., tariffs, "showing all charges" and "showing the classifications, practices, and regulations affecting such charges." 47 U.S.C. § 203(a). Section 203(c) makes it unlawful for a carrier to "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule." §203(c). These provisions are modeled after similar provisions of the Interstate Commerce Act (ICA) and share its goal of preventing unreasonable and discriminatory charges. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229 -230 (1994). Accordingly, the century-old "filed-rate doctrine" associated with the ICA tariff provisions applies to the Communications Act as well. See id ., at 229331; Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577 (1981); cf. United States Nav. Co. v. Cunard S. S. Co., 284 U.S. 474, 481 (1932). In Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97 (1915), we described the basic contours of the filed-rate doctrine under the ICA: "Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination." Thus, even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. Kansas City Southern R. Co. v. Carl, 227 U.S. 639, 653 (1913). While the filed-rate doctrine may seem harsh in some circumstances, see, e.g., Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 130 -131 (1990), its strict application is necessary to "prevent carriers from intentionally 'misquoting' rates to shippers as a means of offering them rebates or discounts," the very evil the filing requirement seeks to prevent. Id. , at 127. Regardless of the carrier's motive-whether it seeks to benefit or harm a particular customer-the policy of nondiscriminatory rates is violated when similarly situated customers pay different rates for the same services. It is that anti-discriminatory policy which lies at "the heart of the common-carrier section of the Communications Act." MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 229. The Ninth Circuit thought the filed-rate doctrine inapplicable "[b]ecause this case does not involve rates or ratesetting, but rather involves the provisioning of services and billing." 108 F. 3d, at 990. Rates, however, do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for excessive rates can be couched as a claim for inadequate services and vice versa. "If 'discrimination in charges' does not include non-price features, then the carrier could defeat the broad purpose of the statute by the simple expedient of providing an additional benefit at no additional charge. . . . An unreasonable 'discrimination in charges,' that is, can come in the form of a lower price for an equivalent service or in the form of an enhanced service for an equivalent price." Competitive Telecommunications Assn. v. FCC , 998 F.2d 1058, 1062 (CADC 1993). The Communications Act recognizes this when it requires the filed tariff to show not only "charges," but also "the classifications, practices, and regulations affecting such charges," 47 U.S.C. § 203(a); and when it makes it unlawful to "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges" except those set forth in the tariff, §203(c). Unsurprisingly, the cases decided under the ICA make it clear that discriminatory "privileges" come in many guises, and are not limited to discounted rates. "[A] preference or rebate is the necessary result of every violation of [the analog to §203(c) in the ICA] where the carrier renders or pays for a service not covered by the prescribed tariffs." United States v. Wabash R. Co., 321 U.S. 403, 412 -413 (1944). In Chicago & Alton R. Co. v. Kirby, 225 U.S. 155 (1912), we rejected a shipper's breach-of-contract claim against a railroad for failure to ship a carload of race horses by a particularly fast train. We held that the contract was invalid as a matter of law because the carrier's tariffs "did not provide for an expedited service, nor for transportation by any particular train" and therefore the shipper received "an undue advantage . . . that is not one open to others in the same situation." Id. , at 163, 165. Similarly, in Davis v. Cornwell, 264 U.S. 560 (1924), we invalidated the carrier's agreement to provide the shipper with a number of railroad cars on a specified day; such a special advantage, we said, "is illegal, when not provided for in the tariff." Id. , at 562. See also Kansas City Southern R. Co. v. Carl, supra, at 653; Wight v. United States, 167 U.S. 512, 517 -518 (1897); I. Lake, Discrimination by Railroads and Other Public Utilities 310-315 (1947). III The Ninth Circuit distinguished the Court's filed-rate cases involving claims for special services on the ground that the services at issue there "should have been included in the tariff and made available to all" because "the customer would have been expected to pay a higher rate" for those services. 108 F. 3d, at 989, n. 9. But that is precisely the case here. Indeed, the additional services and guarantees that respondent claims it was entitled to by virtue of Ms. Kisor's representations and petitioner's sales brochures-viz., faster provisioning, the allocation of charges through multilocation billing, and various matters relating to deposits, calling cards, and service support, see 108 F. 3d, at 987-988-all pertain to subjects that are specifically addressed by the filed tariff. See AT&T Tariff FCC No. 1, §2.5.10 (provisioning of orders); §6.2.4 (allocation of charges); §2.5.6 (deposits); §2.5.12.B (calling cards); §6.2.5 (service supports). The Ninth Circuit agreed that all of respondent's claims except those relating to provisioning and billing would be pre-empted if the filed-rate doctrine applied. 108 F. 3d, at 990. But even provisioning and billing are, in the relevant sense, "covered" by the tariff. For example, whereas respondent asks to enforce a guarantee that orders would be provisioned within 30 to 90 days, the tariff leaves it up to petitioner to "establis[h] and confir[m]" a due date for provisioning, requires that petitioner merely make "every reasonable effort" to meet that due date, and if it fails gives the customer no recourse except to "cancel the order without penalty or payment of nonrecurring charges." §2.5.10(B). Faster, guaranteed provisioning of orders for the same rate is certainly a privilege within the meaning of §203(c) and the filed-rate doctrine. Cf . Chicago & Alton R. Co. v. Kirby , supra, at 163 (refusing to enforce promise for faster, guaranteed service not included in the tariff). As for billing, whereas respondent claims that, pursuant to the MLB option, petitioner promised to allocate usage and charges accurately among respondent's customers, the tariff provides that petitioner "will not allocate . . . usage or charges" among the locations on the customer's network and "is not responsible for the way that the Customer may allocate usage or charges." AT&T Tariff FCC No. 1, §6.2.4. Any assurance by petitioner that it would allocate usage and charges and take responsibility for the task would have been in flat contradiction of the tariff. See Chesapeake & Ohio R. Co. v. Westinghouse, Church, Kerr & Co., 270 U.S. 260, 266 (1926). The Ninth Circuit distinguished respondent's claims from those in our filed-rate cases involving special services in one other respect: according to respondent, the "special services" that it sought were provided by petitioner, without charge, to other customers, 108 F. 3d, at 989, n. 9. Even if that were so, the claim for these services would still be pre-empted under the filed-rate doctrine. To the extent respondent is asserting discriminatory treatment, its remedy is to bring suit under §202 of the Communications Act. 1 To the extent petitioner is claiming that its own claims for special services are not really special because other companies get the same preferences, "that would only tend to show that the practice was unlawful [with regard to] the others as well." United States v. Wabash R. Co., 321 U.S. 403, 413 (1944). Because respondent asks for privileges not included in the tariff, its statelaw claims are barred in either case. IV Our analysis applies with equal force to respondent's tortious-interference claim because that is wholly derivative of the contract claim for additional and better services. Respondent contended that the tort claim was based on "AT&T's refusal to provide [respondent] with certain types of service" and the Magistrate Judge agreed, noting that " 'the claims in this case, even the tort claim, . . . stem from the alleged failure of AT&T to comply with its contractual relationship.' " 2 Brief for Appellant in Nos. 9436116, 94-36156 (CA9), p. 33. Respondent can no more ob- tain unlawful preferences under the cloak of a tort claim than it can by contract. "The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier." Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 163 (1922); see also Maislin , 497 U.S., at 126 . The saving clause of the Communications Act, §414, contrary to respondent's reading of it, does not dictate a different result. Section 414 copies the saving clause of the ICA, and we have long held that the latter preserves only those rights that are not inconsistent with the statutory filed-tariff requirements. Adams Express Co. v. Croninger, 226 U.S. 491, 507 (1913). A claim for services that constitute unlawful preferences or that directly conflict with the tariff-the basis for both the tort and contract claims here-cannot be "saved" under §414. "Th[e saving] clause . . . cannot in reason be construed as continuing in [customers] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself." Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907). Finally, we reject respondent's argument that, even if the tariff exclusively governs the parties' relationship, the relief awarded is consistent with the tariff, since §2.3.1 provides that petitioner's "liability, if any, for its willful misconduct is not limited by this tariff." Respondent reasons that, because the jury found that petitioner engaged in willful misconduct, the verdict does not conflict with the tariff. Section 2.3.1, however, can not be construed to do what the parties have no power to do. It removes only those limitations upon liability imposed by the tariff , not those imposed by law. It is the Communications Act that renders the promise of preferences unenforceable. The tariff can no more exempt the broken promise of preference that is willful than it can the broken promise of preference that is unintentional. (In fact, perversely enough, the willful breach displays a greater, if belated, attempt to comply with the law.) * * * Because respondent's state-law claims are barred by the filed-rate doctrine, we reverse the judgment of the Ninth Circuit. It is so ordered. JUSTICE O'CONNOR took no part in the consideration or decision of this case. Footnotes [Footnote 1 Eight months after the close of discovery (and well after the 2-year statute of limitations in the Communications Act, §415), respondent sought leave to file a second amended complaint to add a §202 claim. The Magistrate Judge denied the request. Respondent did not appeal that ruling. [Footnote 2 The dissent argues that "the jury's verdict on respondent's tort claim is supported by evidence that went well beyond, and differed in nature from, the contract claim," post , at 1, which the dissent asserts requires us to remand this case rather than reverse the judgment. This issue of non-contract evidence neither was included within the question presented for our review ("Whether . . . the Ninth Circuit improperly allowed state-law contract and tort claims based on a common carrier's failure to honor an alleged side agreement to give its customer better service than called for by the carrier's tariff") nor was raised by respondent as an alternative ground in support of the judgment. Nor has respondent ever suggested the need for a remand, even though the Petition for Certiorari sought not merely reversal, but summary reversal. In its brief on the merits, respondent argued that the intentional tort claim was not pre-empted because AT&T's willful breach of its contractual commitments was not protected by the filed-rate doctrine. There was no hint of an argument that, even if that willful breach could not form the basis for an action, other alleged intentional acts sufficed to support the judgment below. At no point has respondent disputed the Magistrate Judge's finding that the tort claim is derivative of the contract claim, or the Ninth Circuit's description of its tort claim as based on the fact that "because COT had promised certain benefits of SDN to its customers, and because AT&T provided competing services, any violation of AT&T's contractual duties constituted tortious interference with COT's relationship with its customers." 108 F. 3d 981, 988 (CA 1997). Contrary to the dissent's assertion, we have no obligation to search the record for the existence of a nonjurisdictional point not presented, and to consider a disposition (remand instead of reversal) not suggested by either side.

liberal

organization

federalism

1965-051-01

United States Supreme Court BAXSTROM v. HEROLD(1966) No. 219 Argued: December 9, 1965Decided: February 23, 1966 Petitioner, while a prisoner, was certified as insane by a prison physician and transferred to Dannemora State Hospital, an institution under the jurisdiction of the New York Department of Correction and used for prisoners declared mentally ill while serving sentence. Dannemora's director filed a petition in the Surrogate's Court stating that petitioner's sentence was expiring and requesting that he be civilly committed under 384 of the N. Y. Correction Law. At the proceeding the State submitted medical evidence that petitioner was still mentally ill and in need of hospital care. The Surrogate stated that he had no objection to petitioner's transfer to a civil hospital under the jurisdiction of the Department of Mental Hygiene, but that under 384 that decision was up to the latter Department. That Department had determined ex parte that petitioner was not suitable for care in a civil hospital. When petitioner's sentence expired his custody shifted to the Department of Mental Hygiene but he has since remained at Dannemora. Writs of habeas corpus in state courts were dismissed and petitioner's request that he be transferred to a civil hospital was denied as beyond the court's power. Held: Petitioner was denied equal protection of the laws by the statutory procedure whereby a person may be civilly committed at the expiration of a prison sentence without the jury review available to all others civilly committed in New York, and by his commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without the judicial determination that he is dangerously mentally ill such as that afforded to all those so committed except those nearing the end of a penal sentence. Pp. 110-115. Judgment of the Appellate Division, Supreme Court of New York, Third Judicial Department, 21 App. Div. 2d 754, reversed and remanded to that court. Leon B. Polsky argued the cause and filed a brief for petitioner. [383 U.S. 107, 108] Anthony J. Lokot, Assistant Attorney General of New York, argued the cause for respondent. With him on the brief were Louis J. Lefkowitz, Attorney General of New York, and Ruth Kessler Toch, Acting Solicitor General. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. We granted certiorari in this case to consider the constitutional validity of the statutory procedure under which petitioner was committed to a mental institution at the expiration of his criminal sentence in a state prison. Petitioner, Johnnie K. Baxstrom, was convicted of second degree assault in April 1959 and was sentenced to a term of two and one-half to three years in a New York prison. On June 1, 1961, he was certified as insane by a prison physician. He was then transferred from prison to Dannemora State Hospital, an institution under the jurisdiction and control of the New York Department of Correction and used for the purpose of confining and caring for male prisoners declared mentally ill while serving a criminal sentence. In November 1961, the director of Dannemora filed a petition in the Surrogate's Court of Clinton County stating that Baxstrom's penal sentence was about to terminate and requesting that he be civilly committed pursuant to 384 of the New York Correction Law. On December 6, 1961, a proceeding was held in the Surrogate's chambers. Medical certificates were submitted by the State which stated that, in the opinion of two of its examining physicians, Baxstrom was still mentally ill and in need of hospital and institutional care. Respondent, then assistant director at Dannemora, testified that in his opinion Baxstrom was still mentally ill. Baxstrom, appearing alone, was accorded [383 U.S. 107, 109] a brief opportunity to ask questions. 1 Respondent and the Surrogate both stated that they had no objection to his being transferred from Dannemora to a civil hospital under the jurisdiction of the Department of Mental Hygiene. But the Surrogate pointed out that he had no jurisdiction to determine that question - that under 384 the decision was entirely up to the Department of Mental Hygiene. The Surrogate then signed a certificate which indicated he was satisfied that Baxstrom "may require mental care and treatment" in an institution for the mentally ill. The Department of Mental Hygiene had already determined ex parte that Baxstrom was not suitable for care in a civil hospital. Thus, on December 18, 1961, the date upon which Baxstrom's penal sentence expired, custody over him shifted from the Department of Correction to the Department of Mental Hygiene, but he was retained at Dannemora and has remained there to this date. Thereafter, Baxstrom sought a writ of habeas corpus in a state court. An examination by an independent psychiatrist was ordered and a hearing was held at which the examining psychiatrist testified that, in his opinion, Baxstrom was still mentally ill. The writ was dismissed. In 1963, Baxstrom applied again for a writ of habeas corpus, alleging that his constitutional rights had been violated and that he was then sane, or if insane, he should be transferred to a civil mental hospital. Due to his indigence and his incarceration in Dannemora, Baxstrom could not produce psychiatric testimony to disprove the testimony adduced at the prior hearing. The writ was therefore dismissed. Baxstrom's alternative request for [383 U.S. 107, 110] transfer to a civil mental hospital was again denied as being beyond the power of the court despite a statement by the State's attorney that he wished that Baxstrom would be transferred to a civil mental hospital. On appeal to the Appellate Division, Third Department, the dismissal of the writ was affirmed without opinion. 21 App. Div. 2d 754. A motion for leave to appeal to the Court of Appeals was denied. 14 N. Y. 2d 490. We granted certiorari. 381 U.S. 949 . We hold that petitioner was denied equal protection of the laws by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York. Petitioner was further denied equal protection of the laws by his civil commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without a judicial determination that he is dangerously mentally ill such as that afforded to all so committed except those, like Baxstrom, nearing the expiration of a penal sentence. Section 384 of the New York Correction Law prescribes the procedure for civil commitment upon the expiration of the prison term of a mentally ill person confined in Dannemora. 2 Similar procedures are prescribed for civil [383 U.S. 107, 111] commitment of all other allegedly mentally ill persons. N. Y. Mental Hygiene Law 70, 72. All persons civilly committed, however, other than those committed at the expiration of a penal term, are expressly granted the right to de novo review by jury trial of the question of their sanity under 74 of the Mental Hygiene Law. Under this procedure any person dissatisfied with an order certifying him as mentally ill may demand full review by a jury of the prior determination as to his competency. If the jury returns a verdict that the person is sane, he must be immediately discharged. It follows that the State, having made this substantial review proceeding generally available on this issue, may not, consistent with the Equal Protection Clause of the Fourteenth Amendment, arbitrarily withhold it from some. The director contends that the State has created a reasonable classification differentiating the civilly insane from the "criminally insane," which he defines as those with dangerous or criminal propensities. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. Walters v. City of St. Louis, 347 U.S. 231, 237 . Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment [383 U.S. 107, 112] of a person who is nearing the end of a penal term from all other civil commitments. The statutory procedure provided in 384 of the New York Correction Law denied Baxstrom the equal protection of the laws in another respect as well. Under 384 the judge need only satisfy himself that the person "may require care and treatment in an institution for the mentally ill." Having made such a finding, the decision whether to commit that person to a hospital maintained by the Department of Correction or to a civil hospital is completely in the hands of administrative officials. 3 Except for persons committed to Dannemora upon expiration of sentence under 384, all others civilly committed to hospitals maintained by the Department of [383 U.S. 107, 113] Correction are committed only after judicial proceedings have been held in which it is determined that the person is so dangerously mentally ill that his presence in a civil hospital is dangerous to the safety of other patients or employees, or to the community. 4 This statutory classification cannot be justified by the contention that Dannemora is substantially similar to other mental hospitals in the State and that commitment to one hospital or another is simply an administrative matter affecting no fundamental rights. The parties have described various characteristics of Dannemora to show its similarities and dissimilarities to civil hospitals in New York. As striking as the dissimilarities are, we need not make any factual determination as to the nature of Dannemora; the New York State Legislature has already made that determination. By statute, the hospital is under the jurisdiction of the Department of Correction and is used for the purpose of confining and caring for insane prisoners and persons, like Baxstrom, committed at the expiration of a penal term. N. Y. Correction Law 375. Civil mental hospitals in New York, on the other hand, are under the jurisdiction and control of the Department of Mental Hygiene. Certain privileges of patients at Dannemora are restricted by statute. N. Y. Correction Law 388. Moreover, as has [383 U.S. 107, 114] been noted, specialized statutory procedures are prescribed for commitment to hospitals under the jurisdiction of the Department of Correction. While we may assume that transfer among like mental hospitals is a purely administrative function, where, as here, the State has created functionally distinct institutions, classification of patients for involuntary commitment to one of these institutions may not be wholly arbitrary. The director argues that it is reasonable to classify persons in Baxstrom's class together with those found to be dangerously insane since such persons are not only insane but have proven criminal tendencies as shown by their past criminal records. He points to decisions of the New York Court of Appeals supporting this view. People ex rel. Kamisaroff v. Johnston, 13 N. Y. 2d 66, 192 N. E. 2d 11; People ex rel. Brunson v. Johnston, 15 N. Y. 2d 647, 204 N. E. 2d 200. We find this contention untenable. Where the State has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, it may not deny this right to a person in Baxstrom's position solely on the ground that he was nearing the expiration of a prison term. 5 It may or may not be that Baxstrom [383 U.S. 107, 115] is presently mentally ill and such a danger to others that the strict security of a Department of Correction hospital is warranted. All others receive a judicial hearing on this issue. Equal protection demands that Baxstrom receive the same. The capriciousness of the classification employed by the State is thrown sharply into focus by the fact that the full benefit of a judicial hearing to determine dangerous tendencies is withheld only in the case of civil commitment of one awaiting expiration of penal sentence. A person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all semblance of rationality of the classification, purportedly based upon criminal propensities, disappears. In order to accord to petitioner the equal protection of the laws, he was and is entitled to a review of the determination as to his sanity in conformity with proceedings granted all others civilly committed under 74 of the New York Mental Hygiene Law. He is also entitled to a hearing under the procedure granted all others by 85 of the New York Mental Hygiene Law to determine whether he is so dangerously mentally ill that he must remain in a hospital maintained by the Department of Correction. The judgment of the Appellate Division of the Supreme Court, in the Third Judicial Department of New York is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE BLACK concurs in the result. Footnotes [Footnote 1 The State apparently permits counsel to be retained in such proceedings where the person can afford to hire his own attorney despite the fact that 384 makes no provision for counsel to be present. See 1961 Op. N. Y. Atty. Gen. 180, 181. Baxstrom is indigent, however, and had no counsel at this hearing. [Footnote 2 As it appeared when applied to petitioner in 1961, N. Y. Correction Law 384 provided in part: "1. Within thirty days prior to the expiration of the term of a prisoner confined in the Dannemora state hospital, when in the opinion of the director such prisoner continues insane, the director shall apply to a judge of a court of record for the certification of such person as provided in the mental hygiene law for the certification of a person not in confinement on a criminal charge. The court in which such proceedings are instituted shall if satisfied that such person may require care and treatment in an institution for the mentally ill, issue an order directing that such person be committed to the custody of the commissioner of mental hygiene to be [383 U.S. 107, 111] placed in an appropriate state institution of the department of mental hygiene or of the department of correction as may be designated for the custody of such person by agreement between the heads of the two departments." [Footnote 3 In this case, the administrative decision to retain Baxstrom in Dannemora was made before any hearing was afforded to Baxstrom and was made despite the otherwise unanimous conclusion by testifying psychiatrists, including an independent examining psychiatrist and respondent himself, that there was no reason why Baxstrom could not be transferred to a civil institution. The following is a portion of the transcript of the hearing before the Surrogate: "The COURT: (Addressing Dr. Herold) Have you any objection if this man is transferred to a civil hospital if the Department of Mental Hygiene so decrees? "Dr. HEROLD: None whatever. "The COURT: And I, Sir, agree with you. I have no objection to his transfer if the Department of Mental Hygiene so finds. "I hope that you will be transferred to a civil hospital. "Good luck." And at the first habeas corpus hearing: "Q. Do you feel, Doctor, from your examination and examining the records of this man, he needs additional care? Is that correct? "A. [Dr. Kerr] Yes, sir. May I say something at this point, sir? "Q. Surely. "A. Since Mr. Baxstrom's sentence has actually expired, sir, I would like to say that in my opinion there is no reason why he could not be treated in a civil mental hospital. I would simply like to say that for the record, sir. "The COURT: All right." [Footnote 4 N. Y. Mental Hygiene Law 85, 135. See also N. Y. Code Crim. Proc. 662-b (3) (b), 872 (1) (b), as amended, N. Y. Laws 1965, c. 540, 1, 2. Former 412 of Correction Law, permitting commitment to Matteawan State Hospital of any patient who had previously been sentenced to a term of imprisonment, without the benefit of the proceeding accorded others under 85 of the Mental Hygiene Law, was held unconstitutional as a denial of equal protection in United States ex rel. Carroll v. McNeill, 294 F.2d 117 (C. A. 2d Cir. 1961), probable jurisdiction noted, 368 U.S. 951 , vacated and dismissed as moot, 369 U.S. 149 , and was repealed by N. Y. Laws 1965, c. 524. Even that provision required a showing that the person still manifested criminal tendencies. [Footnote 5 In oral argument, counsel for respondent suggested that the determination by the Department of Mental Hygiene to retain a person in Dannemora must be based not only on his past criminal record, but also on evidence that he is currently dangerous. Far from supporting the validity of the procedure, this only serves to further accent the arbitrary nature of the classification. Under this procedure, all civil commitments to an institution under the control of the Department of Correction require a determination that the person is presently dangerous; all persons so committed are entitled to a judicial proceeding to determine this fact except those awaiting expiration of sentence. Their fate is decided by unreviewable determinations of the Department of Mental Hygiene. [383 U.S. 107, 116]

liberal

public_entity

criminal_procedure

1993-032-01

United States Supreme Court POWELL v. NEVADA(1994) No. 92-8841 Argued: February 22, 1994Decided: March 30, 1994 Petitioner Powell was arrested on November 3, 1989, for felony child abuse. Not until November 7, however, did a magistrate find probable cause to hold him for a preliminary hearing. The child in question subsequently died of her injuries, and Powell was charged additionally with her murder. At the trial, the state prosecutor presented prejudicial statements Powell had made to the police on November 7. The jury found him guilty and sentenced him to death. On appeal, the Nevada Supreme Court, sua sponte, raised the question whether the 4-day delay in judicial confirmation of probable cause violated the Fourth Amendment, in view of County of Riverside v. McLaughlin, 500 U.S. 44 , which held that a judicial probable cause determination must generally be made within 48 hours of a warrantless arrest, and that, absent extraordinary circumstances, a longer delay is unconstitutional. The state court decided that McLaughlin was inapplicable to Powell's case, because his prosecution commenced prior to the rendition of that decision. Held: The Nevada Supreme Court erred in failing to recognize that McLaughlin's 48-hour rule must be applied retroactively, for under Griffith v. Kentucky, 479 U.S. 314, 328 , "a . . . rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, . . . not yet final" when the rule is announced. Although the 4-day delay here was presumptively unreasonable under McLaughlin, it does not necessarily follow that Powell must be set free or gain other relief. Several questions remain open for decision on remand, including the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), the consequence of Powell's failure to raise the federal question, and whether introduction at trial of Page II what Powell said on November 7 was "harmless" in view of a similar, albeit shorter, statement he made prior to his arrest. Pp. 4-6. 108 Nev. 700, 838 P.2d 921, vacated and remanded. GINSBURG, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined. [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 1] GINSBURG delivered the opinion of the Court. In Gerstein v. Pugh, 420 U.S. 103 (1975), we held that the Fourth Amendment's shield against unreasonable seizures requires a prompt judicial determination of probable cause following an arrest made without a warrant and ensuing detention. County of Riverside v. McLaughlin, 500 U.S. 44 (1991), established that "prompt" generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the Fourth Amendment. In the case now before us, the Supreme Court of Nevada stated that McLaughlin does not apply to a prosecution commenced prior to the rendition of that decision. We hold that the Nevada Supreme Court misread this Court's precedent: "[A] . . . rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, . . . not yet final" when the rule is announced. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). I Petitioner Kitrich Powell was arrested on Friday, November 3, 1989, for felony child abuse of his girlfriend's 4-year-old daughter, in violation of Nev.Rev.Stat. 200.508 (1991). That afternoon, the arresting [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 2] officer prepared a sworn declaration describing the cause for and circumstances of the arrest. Not until November 7, 1989, however, did a magistrate find probable cause to hold Powell for a preliminary hearing. That same day, November 7, Powell made statements to the police, prejudicial to him, which the prosecutor later presented at Powell's trial. Powell was not personally brought before a magistrate until November 13, 1989. By that time, the child had died of her injuries, and Powell was charged additionally with her murder. A jury found Powell guilty of first-degree murder and, following a penalty hearing, sentenced him to death. On appeal to the Nevada Supreme Court, Powell argued that the State had violated Nevada's "initial appearance" statute by failing to bring him before a magistrate within 72 hours, and that his conviction should therefore be reversed. The Nevada statute governing appearances before a magistrate provides: "If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: "(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and "(b) May release the arrested person if he determines that the person was not brought before a magistrate without unnecessary delay." Nev.Rev.Stat. 171.178(3). Powell emphasized that 10 days had elapsed between his arrest on November 3, 1989, and his November 13 initial appearance before a magistrate. In view of the incriminating statements he made on November 7, Powell contended, the unlawful delay was prejudicial to him. Under Nevada law, Powell asserted, vindication of his right to a speedy first appearance required that his [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 3] conviction be reversed, and that he be set free. Appellant's Opening Brief in No. 22348 (Nev.), p. 85. The District Attorney maintained before the Nevada Supreme Court that there had been no fatal violation of Nevada's initial appearance statute. First, the District Attorney urged, the confirmation of probable cause by a magistrate on November 7 occurred within 72 hours of the November 3 arrest (excluding the intervening weekend). This probable cause finding, the District Attorney contended, satisfied the 72-hour prescription of Nev.Rev.Stat. 171.178. In any event, the District Attorney continued, under Nevada law, an accused waives his right to a speedy arraignment when he voluntarily waives his right to remain silent and his right to counsel. Powell did so, the District Attorney said, when he made his November 7 statements, after he was read his Miranda rights and waived those rights. See Respondent's Answering Brief in No. 22348 (Nev.), pp. 56-60. In reply, Powell vigorously contested the District Attorney's portrayal of the probable cause determination as tantamount to an initial appearance sufficient to satisfy Nev.Rev.Stat. 171.178's 72-hour prescription. Powell pointed out that he "was neither present [n]or advised of the magistrate's finding." Appellant's Reply Brief in No. 22348 (Nev.), p. 1. The Nevada Supreme Court concluded, in accord with the District Attorney's assertion, that Powell had waived his right under state law to a speedy arraignment. 108 Nev. 700, ___, 838 P.2d 921, 924-925 (1992). If the Nevada Supreme Court had confined the decision to that point, its opinion would have resolved no federal issue. But the Nevada Supreme Court said more. Perhaps in response to the District Attorney's contention that the magistrate's November 7 probable cause notation satisfied Nev.Rev.Stat. 171.178 (a contention the State now disavows), the Nevada Supreme Court, sua sponte, raised a federal concern. That court detoured from its [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 4] state law analysis to inquire whether the November 3 to November 7, 1989, delay in judicial confirmation of probable cause violated the Fourth Amendment under this Court's precedents. County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the Nevada Supreme Court recognized, made specific the probable cause promptness requirement of Gerstein v. Pugh, 420 U.S. 103 (1975); McLaughlin instructed that a delay exceeding 48 hours presumptively violates the Fourth Amendment. Merging the speedy initial appearance required by Nevada statute and the prompt probable cause determination required by the Fourth Amendment, the Nevada Supreme Court declared: "The McLaughlin case renders [Nev.Rev.Stat. ] 171.178(3) unconstitutional insofar [as] it permits an initial appearance up to seventy-two hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours. 108 Nev., at ___, 838 P.2d, at 924. While instructing that, henceforth, probable cause determinations be made within 48 hours of a suspect's arrest, the Nevada Supreme Court held McLaughlin inapplicable "to the case at hand," because that recent precedent postdated Powell's arrest. Id., at ___, n. 1, 838 P.2d, at 924, n. 1. McLaughlin announced a new rule, the Nevada Supreme Court observed, and therefore need not be applied retroactively. Ibid. Powell petitioned for our review raising the question whether a state court may decline to apply a recently rendered Fourth Amendment decision of this Court to a case pending on direct appeal. We granted certiorari, 510 U.S. ___ (1993), and now reject the state court's prospectivity declaration. II Powell's arrest was not validated by a magistrate until four days elapsed. That delay was presumptively [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 5] unreasonable under McLaughlin's 48-hour rule. The State so concedes. Appellee's Answer to Petition for Rehearing in No. 22348 (Nev.), p. 7; Tr. of Oral Arg. 28. The State further concedes that the Nevada Supreme Court's retroactivity analysis was incorrect. See ibid. We held in Griffith v. Kentucky, 479 U.S., at 328 , that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." Griffith stressed two points. First, "the nature of judicial review . . . precludes us from `[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.'" Id., at 323 (quoting Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in judgment)). Second, "selective application of new rules violates the principle of treating similarly situated defendants the same." Griffith, supra, at 323. Assuming, arguendo, that the 48-hour presumption announced in McLaughlin qualifies as a "new rule," cf. Teague v. Lane, 489 U.S. 288, 299 -310 (1989), Griffith nonetheless entitles Powell to rely on McLaughlin for this simple reason: Powell's conviction was not final when McLaughlin was announced. It does not necessarily follow, however, that Powell must "be set free," 108 Nev., at ___, n. 1, 838 P.2d, at 924, n. 1, or gain other relief, for several questions remain open for decision on remand. In particular, the Nevada Supreme Court has not yet closely considered the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), or the consequences of Powell's failure to raise the federal question, or the District Attorney's argument that introduction at trial of what Powell said on November 7, 1989, was "harmless" in view of a similar, albeit shorter, [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 6] statement Powell made on November 3, prior to his arrest. See Brief for Respondent 22. Expressing no opinion on these issues, * we hold only that the Nevada Supreme Court erred in failing to recognize that Griffith v. Kentucky calls for retroactive application of McLaughlin's 48-hour rule. * * * For the reasons stated, the judgment of the Nevada Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [Footnote * JUSTICE THOMAS would reach out and decide the first of these questions, though it is not presented in the petition for review. He would rule inappropriate "suppression of [Powell's November 7] statement . . . because the statement was not a product of the McLaughlin violation." Post, at 5. It is "settled law," he maintains, post, at 3, that if probable cause in fact existed for Powell's detention, then McLaughlin's 48-hour rule, though violated, triggers no suppression remedy. Quite the opposite, JUSTICE THOMAS recognizes, is "settled law" regarding search warrants: a court's post-search validation of probable cause will not render the evidence admissible. See Vale v. Louisiana, 399 U.S. 30, 35 , 34 (1970) (absent circumstances justifying a warrantless search, it is "constitutional error [to] admi[t] into evidence the fruits of the illegal search," "even though the authorities ha[d] probable cause to conduct it"). JUSTICE THOMAS maintains, however, that our precedents, especially New York v. Harris, 495 U.S. 14 (1990), already establish that no suppression is required in Powell's case. In Harris, we held that violation of the Fourth Amendment's rule against warrantless arrests in a dwelling, see Payton v. New York, 445 U.S. 573 (1980), generally does not lead to the suppression of a post-arrest confession. But Powell does not complain of police failure to obtain a required arrest warrant. He targets a different constitutional violation - failure to obtain authorization from a magistrate for a significant period of pretrial detention. Whether a suppression remedy applies in that setting remains an unresolved question. Because the issue was not raised, argued, or decided below, we should not settle it here. [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 1] JUSTICE THOMAS, with whom The Chief Justice joins, dissenting. After concluding that the Nevada Supreme Court erred by failing to follow our decision in Griffith v. Kentucky, 479 U.S. 314 (1987), the Court remands this case without deciding whether the ultimate judgment below, despite the error, was correct. In my view, the lower court's judgment upholding petitioner's conviction was correct under settled legal principles, and therefore should be affirmed. I The petition for certiorari in this case presented a single question for review - namely, whether a particular decision of this Court concerning criminal procedure should apply retroactively to all cases pending on direct review. This question was well settled at the time the petition was filed, and had been since our decision in Griffith, in which we stated that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." 479 U.S., at 328 . The Nevada Supreme Court made a statement to the contrary in a [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 2] footnote in its opinion. See infra this page and 3. Notwithstanding this obvious mistake, Griffith's rule of retroactivity had generated little or no confusion among the lower courts. In my view, under these circumstances, the writ was improvidently granted. According to this Court's Rule 10.1, "[a] petition for a writ of certiorari will be granted only when there are special and important reasons therefor." Not only were there no special or important reasons favoring review in this case, but, as Justice Stewart once wrote: "The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the [parties]." Butz v. Glover Livestock Commission Co., 411 U.S. 182, 189 (1973) (dissenting opinion). As the Court has observed in the past, "it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal." Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393 (1923). We make poor use of judicial resources when, as here, we take a case merely to reaffirm (without revisiting) settled law. See generally Estelle v. Gamble, 429 U.S. 97, 115 (1976) (Stevens, J., dissenting); United States v. Shannon, 342 U.S. 288, 294 -295 (1952) (opinion of Frankfurter, J.). Now that we have invested time and resources in full briefing and oral argument, however, we must decide how properly to dispose of the case. The Court vacates and remands because the Nevada Supreme Court erred, not in its judgment, but rather in its "prospectivity declaration." Ante, at 4. The "declaration" to which the Court refers is the state court's statement that our [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 3] decision in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), does "not apply retroactively." 108 Nev. 700, ___, n. 1, 838 P.2d 921, 924, n. 1 (1992). The Court correctly rules that McLaughlin does apply retroactively. See Griffith, supra. Rather than remanding, I believe that the Court in this instance can and should definitively resolve the case before us: "Our job . . . is to review judgments, not to edit opinions. . . ." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 823 (1985) (Stevens, J., concurring in part and dissenting in part). See also K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185 (1988); Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956). Of course, when there is a need for further factfinding or for proceedings best conducted in the lower courts, or where the ultimate question to be decided depends on debatable points of law that have not been briefed or argued, we regularly determine that the best course is to remand. See, e.g., Pierce v. Underwood, 487 U.S. 552, 574 (1988) (vacating award of attorney's fees and remanding for recalculation of fee award). Those concerns, however, do not require a remand in this case. In defense of the judgment below, respondent and its amici have properly raised a number of arguments, see Blum v. Bacon, 457 U.S. 132, 137 , n. 5 (1982), which have been fully briefed. As I explain below, at least one of those arguments provides a ground for decision that would require only the application of settled law to the undisputed facts in the record before us. Under these circumstances, remanding will merely require the needless expenditure of further judicial resources on a claim that lacks merit. II While in petitioner's care on November 2, 1989, 4-year-old Melea Allen suffered massive head and spinal [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 4] injuries. When petitioner took her to the hospital the following day, November 3, she was comatose and suffering respiratory failure. Petitioner told doctors and nurses that she had fallen from his shoulders during play. When emergency room personnel discovered that Melea also had numerous bruises and lacerations on her body - injuries that suggested she had been abused repeatedly - they called the police. Petitioner spoke to the officers who responded to the call and again explained that the child's injuries were the result of an accidental fall. Several hours later, the police arrested petitioner for child abuse. Within an hour of the arrest, officers prepared a declaration of arrest that recited the above facts to establish probable cause. Petitioner was still in custody on November 7, when, after receiving Miranda warnings, he agreed to give a second statement to the police. He repeated the same version of events he had given at the hospital before his arrest, but in slightly more detail. On that same day, a magistrate, relying on the facts recited in the declaration of arrest described above, determined that petitioner's arrest had been supported by probable cause. The next day Melea died, and petitioner was charged with first-degree murder. Petitioner contends that respondent's delay in securing a prompt judicial determination of probable cause to arrest him for child abuse violated the rule that a probable cause determination must, absent extenuating circumstances, be made by a judicial officer within 48 hours of a warrantless arrest. McLaughlin, supra. The McLaughlin error, petitioner argues, required suppression of the custodial statement he made on November 7, which was introduced against him at trial. Against that argument, respondent and its amici raise several contentions: first, that suppression of evidence would never be an appropriate remedy for a McLaughlin violation; second, that the statement at issue here was [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 5] not a product of the McLaughlin error, or at least that the connection between the McLaughlin violation and the statement is so attenuated that suppression is not required; third, that suppression is inappropriate under Illinois v. Krull, 480 U.S. 340 (1987), because the officers acted in good-faith reliance on a state statute that authorized delays of up to 72 hours (excluding weekends and holidays) in presenting a defendant to a magistrate; and finally, that even if the statement should have been suppressed, admitting it at trial was harmless error. Even assuming, arguendo, that suppression is a proper remedy for McLaughlin errors, see ante, at 5, I believe that, on the facts of this case, suppression of petitioner's statement would not be appropriate because the statement was not a product of the McLaughlin violation. Our decisions make clear "that evidence will not be excluded as `fruit' [of an unlawful act] unless the illegality is at least the `but for' cause of the discovery of the evidence." Segura v. United States, 468 U.S. 796, 815 (1984). As Segura suggests, "but for" causation is a necessary, but not sufficient, condition for suppression: "we have declined to adopt a per se or but for rule that would make inadmissible any evidence . . . which somehow came to light through a chain of causation that began with a [violation of the Fourth or Fifth Amendments]." New York v. Harris, 495 U.S. 14, 17 (1990) (internal quotation marks omitted). See also United States v. Ceccolini, 435 U.S. 268, 276 (1978). Contrary to petitioner's arguments, the violation of McLaughlin (as opposed to his arrest and custody) bore no causal relationship whatsoever to his November 7 statement. The timing of the probable cause determination would have affected petitioner's statement only if a proper hearing at or before the 48-hour mark would have resulted in a finding of no probable cause. Yet, as the magistrate found, the police had probable cause to [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 6] suspect petitioner of child abuse, cf. Illinois v. Gates, 462 U.S. 213 (1983), and there is no suggestion that the delay in securing a determination of probable cause permitted the police to gather additional evidence to be presented to the magistrate. On the contrary, the magistrate based his determination on the facts included in the declaration of arrest that was completed within an hour of petitioner's arrest. Thus, if the probable cause determination had been made within 48 hours, as required by McLaughlin, the same information would have been presented, the same result would have obtained, and none of the circumstances of petitioner's custody would have been altered. Moreover, it cannot be argued that the McLaughlin error somehow made petitioner's custody unlawful, and thereby rendered the statement the product of unlawful custody. Because the arresting officers had probable cause to arrest petitioner, he was lawfully arrested at the hospital. Cf. Harris, supra, at 18. 1 The presumptively [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 7] unconstitutional delay in securing a judicial determination of probable cause during a period of lawful custody did not render that custody illegal. We have never suggested that lawful custody becomes unlawful due to a failure to obtain a prompt judicial finding of probable cause - that is, probable cause does not disappear if not judicially determined within 48 hours. Cf. United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990) ("[A] person does not become immune from detention because of a timing violation"). In short, the statement does not even meet the threshold requirement of being a "product" of the McLaughlin violation. 2 Petitioner's statement, "while the product of an arrest and being in custody, was not the fruit of the [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 8] fact" that a judicial determination of probable cause was not made within the 48-hour period mandated by McLaughlin. Harris, 495 U.S., at 20 . Under these circumstances, suppression is not warranted under our precedents. * * * For the foregoing reasons, the judgment below should be affirmed. I respectfully dissent. Footnotes [Footnote 1 The fact that the arrest was supported by probable cause and was not investigatory in nature fully distinguishes this case from our decisions in Taylor v. Alabama, 457 U.S. 687 (1982), Brown v. Illinois, 422 U.S. 590 (1975), and Dunaway v. New York, 442 U.S. 200 (1979). Where probable cause for an arrest is lacking, as it was in each of those cases, evidence obtained as a result of the Fourth Amendment violation "bear[s] a sufficiently close relationship to the underlying illegality [to require suppression]." New York v. Harris, 495 U.S. 14, 19 (1990). The presence of probable cause, by contrast, validates the arrest and attendant custody, despite "`technical' violations of Fourth Amendment rights" that may have occurred during either. Brown, supra, at 611 (Powell, J., concurring in part). See also Harris, supra, at 18 (holding that, even though the police violated the rule of Payton v. New York, 445 U.S. 573 (1980), by arresting a suspect in his house without a warrant, the resulting custody was lawful because the arrest was supported by probable cause, and that therefore the suspect's subsequent custodial statement was admissible). [ POWELL v. NEVADA, ___ U.S. ___ (1994) , 7] As the Court notes, ante, at 6, n. *, a different rule applies to search warrants. In that context, we have insisted that, absent exigent circumstances, police officers obtain a search warrant, even if they had probable cause to conduct the search, see, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 454 -455 (1971), and we have required suppression of all fruits of an unlawful search, unless an exception to the exclusionary rule applies. See generally Illinois v. Krull, 480 U.S. 340, 347 -349 (1987). The same rule has not been applied to arrests. "[W]hile the Court has expressed a preference for the use of arrest warrants when feasible, it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (citations omitted). Nor has the Court required suppression of voluntary custodial statements made after an arrest supported by probable cause based solely on the officers' failure to obtain a warrant. See Harris, supra. Petitioner's statement was the product of his arrest and custody, and there is no reason to think that the rules we have developed in the search warrant context should apply in this case. [Footnote 2 Thus, conventional attenuation principles are inapplicable in this case, for, as we pointed out in Harris, "attenuation analysis is only appropriate where, as a threshold matter, courts determine that "the challenged evidence is in some sense the product of illegal governmental activity." 495 U.S., at 19 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). Page I

liberal

public_entity

criminal_procedure

1953-054-01

United States Supreme Court ALABAMA v. TEXAS(1954) No. ORIG Argued: Decided: March 15, 1954 The motions of the States of Alabama and Rhode Island for leave to file complaints challenging the constitutionality of the Submerged Lands Act of 1953, are denied in view of Art. IV, 3, cl. 2 of the Federal Constitution and the cases cited. Pp. 273-274. [Footnote * Together with No. ___, Original, Rhode Island v. Louisiana et al., also on motion for leave to file bill of complaint. William E. Powers, Attorney General of Rhode Island, Si Garrett, Attorney General of Alabama, Benjamin V. Cohen and Marx Leva argued the cause for complainants. On the briefs were Mr. Powers, Mr. Cohen, Thomas G. Corcoran and Eugene Gressman for the State of Rhode Island; and Mr. Garrett, and M. Roland Nachman, Jr. and Gordon Madison, Assistant Attorneys General, for the State of Alabama, complainants. Edmund G. Brown, Attorney General of California, John L. Madden, Assistant Attorney General of Louisiana, Jesse P. Luton, Jr., Special Assistant Attorney General of Texas, and Oscar H. Davis argued the cause for defendants. On the briefs were Mr. Brown, William V. O'Connor, Chief Deputy Attorney General, Everett W. Mattoon, Assistant Attorney General, and George G. Grover, Deputy Attorney General, for the State of California, and Richard W. Ervin, Attorney General, Howard S. Bailey and Fred M. Burns, Assistant Attorneys General, and John D. Moriarty, Special Assistant Attorney General, for the State of Florida; Fred S. LeBlanc, Attorney [347 U.S. 272, 273] General, Mr. Madden and Bailey Walsh, Special Assistant Attorney General, for the State of Louisiana; John Ben Shepperd, Attorney General, Robert S. Trotti, First Assistant Attorney General, Mr. Luton, and William H. Holloway and Phillip Robinson, Assistant Attorneys General, for the State of Texas; and Attorney General Brownell, Acting Solicitor General Stern, Assistant Attorney General Rankin, Oscar H. Davis, John F. Davis and George S. Swarth for Humphrey et al., defendants. PER CURIAM. The motions for leave to file these complaints are denied. Article IV, 3, Cl. 2, United States Constitution. United States v. Gratiot, 14 Pet. 526, 537: The power of Congress to dispose of any kind of property belonging to the United States "is vested in Congress without limitation." United States v. Midwest Oil Company, 236 U.S. 459, 474 : "For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress `may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.' Camfield v. United States, 167 U.S. 524 ; Light v. United States, 220 U.S. 536 ." United States v. San Francisco, 310 U.S. 16, 29 -30: "Article 4, 3, Cl. 2 of the Constitution provides that "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.' The power over the public land thus entrusted to Congress is without limitations. `And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.'" United States v. California, 332 U.S. 19, 27 : "We have said that the constitutional [347 U.S. 272, 274] power of Congress [under Article IV, 3, Cl. 2] is without limitation. United States v. San Francisco, 310 U.S. 16, 29 -30." THE CHIEF JUSTICE took no part in the consideration or decision of these cases. MR. JUSTICE REED, concurring. The per curiam opinion in these cases bases its conclusion that the Submerged Lands Act of 1953, 67 Stat. 29, is constitutional on the language in Art. IV, 3, of the Constitution: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . . ." I agree with that result. Neither Alabama nor Rhode Island has questioned or would question that power, if the applicability of that clause were accepted. Those states, however, do not accept the applicability of the quoted clause. It is their position that the resources under the marginal sea do not, under United States v. Texas, 339 U.S. 707 , United States v. Louisiana, 339 U.S. 699 , and United States v. California, 332 U.S. 19 , constitute property either of the United States or of any state. The complainant states assert those cases held that the "paramount rights" in the United States decreed by this Court arose from the sovereignty of the United States and the duty to provide for the common defense. Further, they urge that the rights are held in trust for all the states as a federal responsibility and to cede them to individual states would take away the "equal footing" among states by extending state power into the domain of national responsibility. See United States v. Texas, supra, at 719, and Coyle v. Oklahoma, 221 U.S. 559 . This Court is the only court for the trial and discussion of the points upon which Alabama and Rhode Island [347 U.S. 272, 275] rely. We have heard complainants on all these points and I desire to state why I think the arguments extracted by the states from this Court's ruling authorities on these same rights do not justify a hearing. The fact that Alabama and the defendant states were admitted into the Union "upon the same footing with the original states, in all respects whatever," 2 Stat. 701, 3 Stat. 489, 5 Stat. 742, 797, 9 Stat. 452, does not affect Congress' power to dispose of federal property. The requirement of equal footing does not demand that courts wipe out diversities "in the economic aspects of the several States," but calls for "parity as respects political standing and sovereignty." United States v. Texas, supra, at 716. The power of Congress to cede property to one state without corresponding cession to all states has been consistently recognized. See, e. g., United States v. Wyoming, 335 U.S. 895 , and cases cited by the Court. While this Court did not hold in express terms in the Texas, Louisiana and California cases that the area in question belonged to the United States as proprietor, it did hold that "the Federal Government rather than the state has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil." 332 U.S., at 38 -39. This incident is a property right and Congress had unlimited power to dispose of it. If the marginal lands were thus declared by the California and following cases to belong to the United States, they were ceded to the states through the subsequent Submerged Lands Act of 1953 by the clause: "[T]itle to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters . . . are hereby . . . recognized, confirmed, established, and vested in and assigned to the respective States. . . ." [347 U.S. 272, 276] 3 (a). If, on the other hand, the marginal lands were not declared by those cases to belong to the United States, title to them remained in the respective states. Either by original ownership or by the cession of the Act, the lands are now the property of the respective states. The use or control of the undersea area and its resources by the respective states cannot, therefore, now be challenged by any other state on the ground of lack of sovereignty in the challenged state. The cession challenged here does not affect the power and responsibility of the United States as sovereign to foster and protect against foreign and domestic enemies that area or resources ceded to the proprietorship of the respective states. The Federal Government, of course, owes the same duty to the undersea area that it does to the uplands, the tidelands or the beds of the inland waters. Moreover, the Submerged Lands Act purports to convey to the states only "the lands beneath navigable waters" and "the natural resources within such lands and waters" and expressly provides that "[t]he United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 3 of this Act." 6 (a). Surely this provision negatives any contention that the Act empowers individual states to alter the historic relationship of the states respecting navigation of the ocean. See Kelly v. Washington, 302 U.S. 1 ; cf. Toomer v. Witsell, 334 U.S. 385 . [347 U.S. 272, 277] The United States holds resources and territory in trust for its citizens in one sense, but not in the sense that a private trustee holds for a cestui que trust. The responsibility of Congress is to utilize the assets that come into its hands as sovereign in the way that it decides is best for the future of the Nation. That is what it has done here. Such congressional determination as the legislation here in question is not subject to judicial review. MR. JUSTICE BLACK, dissenting. Alabama and Rhode Island asked leave to file complaints to challenge an Act of Congress which purports to convey to some of the states an indefeasible title to and ownership of soil under the Gulf of Mexico and the Atlantic and Pacific Oceans. The Act includes a similar gift of all the "natural resources within such lands and waters." Some states are given a three-mile strip of ocean; some states are given about ten miles; most states are given no ocean at all. Some states that are thus receiving gifts claim even more. Louisiana by law makes claims extending 30 miles into the Gulf of Mexico. Texas, it is said, claims that at some points its state borders project as far as 150 miles into the Gulf. If Congress can cede three miles of ocean I see no reason why it could not later cede 150 miles or more. Alabama and Rhode Island deny that Congress has any power to dispose of the national interest in the Ocean or its uncaptured resources. These States assert that whatever power the United States has over the Ocean is an inseparable part of national sovereignty which cannot be irrevocably parcelled out or delegated to states, individuals or private business groups. Admitting the power of Congress to control and regulate the use of the Ocean and the capturing of its assets, Alabama and Rhode Island deny that any part of this sovereign [347 U.S. 272, 278] national control can be vested in any state. Such an unauthorized abdication of essential national sovereignty, so the two States urge, is precisely the effect of the challenged Act. If true, this subjection of Alabama and Rhode Island to regulation by other states deprives them of that "equal footing" as States which is theirs by right. United States v. Texas, 339 U.S. 707, 719 . The Court, however, summarily denies Alabama and Rhode Island a right even to file their complaint. This I assume must be done on the ground that the claims they present are so clearly without merit as to be frivolous. I am unable to agree to this and would grant leave to file in order that the case might be considered in the usual manner. My reasons can be briefly stated. Ocean waters are the highways of the world. They are no less such because they happen to lap the shores of different nations that border them. Freedom of the seas everywhere is essential to trade, commerce, travel and communication among the nations. These far-flung international activities have frequently led to conflict and war. The War of 1812 bears witness to this. In ocean waters bordering our country, if nowhere else, day-to-day national power - complete, undivided, flexible, and immediately available - is an essential attribute of federal sovereignty. The present Act might be construed in such way that this power would not be substantially impaired, weakened or made less easily available at all times. But the Court is not construing it that way. The Act's language purports to convey "all right, title, and interest of the United States" to immense ocean areas as though the Ocean could be divided up and sold like town lots. If valid, the Act grants to states all "proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources" of the Ocean. The result is that some favored states can say how, when, for what purposes [347 U.S. 272, 279] and to what extent other states and their citizens may use the Ocean or its resources. This raises serious and difficult questions with respect to the authority of Congress to relinquish elements of national sovereignty over the Ocean. Once private property rights in ocean waters are recognized, I am uncertain where lines can be drawn. The Court's decision today in Federal Power Commission v. Niagara Mohawk Power Corp., ante, p. 239, goes a long way toward partitioning up the running rivers of America into conceptualistic segments. 1 Under that case the Government is likely to have to pay large sums if it wishes to use its rivers. MR. JUSTICE DOUGLAS' dissent in the Niagara Mohawk case should warn us to beware of extending the concept of state ownership of land under inland streams to the vast ocean areas of the world. 2 The results in that case are in my view bad enough. But it could be far worse to permit agencies other than the United States to clutter up the Ocean with multitudinous wells and derricks and deeds and leases and time-consuming lawsuits. All of these things suggest some of the dangers of depriving the United States of complete, unhampered control of the Ocean bordering our Nation. We should not forget that the Ocean "belongs to no one nation, but is the common property of all." Lord v. Steamship Co., 102 U.S. 541, 544 . 3 [347 U.S. 272, 280] The Constitution does give Congress power to dispose of and regulate "Territory or other Property belonging to the United States." This power, where it applies, has been declared to be unlimited. Congress, the Court has said, "may deal with such lands precisely as a private individual may deal with his farming property." Camfield v. United States, 167 U.S. 518, 524 . Of course, this authorizes Congress at will to sell or dispose of property it owns as property. It could produce oil from the Ocean and sell that property. It could have that oil produced by its agents. But I have difficulty in believing that any state can be granted power under our Constitution to exact tribute from any other state that wants to take oil or fish from the Ocean which is the common "property" of all. And I have trouble also in thinking Congress could sell or give away the Atlantic or Pacific Ocean. If it can treat those Oceans as "Territory" within the Constitution's meaning, why could it not deed away thousands of miles of the Atlantic or Pacific at will? I suppose no one would say that the Constitution permits Congress to create new states at least in part out of submerged lands with state power to govern and rule over the "Territory" so disposed of. Would this Court sustain the power of Congress to sell the Mississippi or any of the other great navigable rivers of this country? The Court's decisions here and in the Niagara Mohawk case leave me in doubt. The issues presented are too grave and too doubtful for me to assent to closing the doors of this Court to these States without a more careful consideration of the question than the Court has afforded. For there is a great [347 U.S. 272, 281] deal more involved than who gets what oil. Congress has here transferred to the states substantial power over the Ocean. This necessarily makes less readily available the Nation's power to protect the freedom of the seas - a power essential to keep peace and friendship among the nations of the world. I cannot agree to deny these States a full opportunity to challenge the Act. Footnotes [Footnote 1 This Court has referred to ownership of submerged lands under navigable streams as "theoretical ownership and dominion," "a qualified title," and "a bare technical title." Scranton v. Wheeler, 179 U.S. 141, 160 , 163. See also United States v. Commodore Park, Inc., 324 U.S. 386, 390 . [Footnote 2 See United States v. California, 332 U.S. 19, 36 . [Footnote 3 It is true that the Act does purport to reserve for the United States "all its navigational servitude and rights in and powers of regulation and control . . . for the constitutional purposes of commerce, navigation, national defense, and international affairs. . . ." But surely this reserves nothing that Congress could give away. Any [347 U.S. 272, 280] attempt to relinquish the National Government's power over the Ocean to that extent would ignore the fact that "Navigation on the high seas is necessarily national in its character. Such navigation is clearly a matter of `external concern,' affecting the nation as a nation in its external affairs. It must, therefore, be subject to the national government." Lord v. Steamship Co., 102 U.S. 541, 544 . MR. JUSTICE DOUGLAS, dissenting. California lost her claim to the sea beyond the low-water mark by a six-to-two decision. United States v. California, 332 U.S. 19 . Then came a change in the Court's membership; and Texas lost her claim to the marginal sea by a four-to-three decision. United States v. Texas, 339 U.S. 707 . Only three of the majority that decided those cases survive. It would therefore be quite understandable if a majority of the present Court were to take the position of the earlier minority and overrule those decisions. But if those decisions are to stand, it is inconceivable to me that we can deny leave to file the complaints in the present cases. To deny these motions we must hold that the issues tendered are frivolous and insubstantial. But if the earlier decisions are to stand, certainly that cannot be said. If the issue before us were only the power of Congress to dispose of public lands, the claims of Alabama and Rhode Island would be foreclosed by Art. IV, 3 of the Constitution. But the entire point of the earlier litigation in the California and Texas cases was that more than property rights was involved. As we said in United States v. Texas, supra, p. 719, "once low-water mark is passed the international domain is reached. Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign." Any "property interests" which the States may earlier have held in the bed of the marginal sea [347 U.S. 272, 282] were "so subordinated to the rights of sovereignty as to follow sovereignty." Id. Thus we are dealing here with incidents of national sovereignty. The marginal sea is not an oil well; it is more than a mass of water; it is a protective belt for the entire Nation over which the United States must exercise exclusive and paramount authority. The authority over it can no more be abdicated than any of the other great powers of the Federal Government. It is to be exercised for the benefit of the whole. As MR. JUSTICE BLACK aptly states in his dissent in these cases, "In ocean waters bordering our country, if nowhere else, day-to-day national power - complete, undivided, flexible, and immediately available - is an essential attribute of federal sovereignty." Could Congress cede the great Columbia River or the mighty Mississippi to a State or a power company? I should think not. For they are arteries of commerce that attach to the national sovereignty and remain there until and unless the Constitution is changed. What is true of a great river would seem to be even more obviously true of the marginal sea. For it is not only an artery of commerce among the States but the vast buffer standing between us and the world. It therefore would seem that unless we are to change our form of government, that domain must by its very nature attach to the National Government and the authority over it remain nondelegable. It is said, however, that the interests in the marginal sea may be chopped up, the States being granted the economic ones and the Federal Government keeping the political ones. We rejected, however, that precise claim in the earlier cases. We said, for example, that the "equal footing" clause in the Joint Resolution admitting Texas to the Union precluded the argument that Texas surrendered only political rights over the marginal sea [347 U.S. 272, 283] and retained all property rights in it. 339 U.S., at 716 -720. If it were necessary for Texas to surrender all her property and political rights in the marginal sea in order to enter the Union on an "equal footing" with the other States, pray how can she get back some of those rights and still remain on an "equal footing" with the other States? That is the unresolved question in these cases. That is the question which points up the grievances of Alabama and Rhode Island. For what Texas (and a few other States) obtain by the present Act of Congress is what we held the "equal footing" clause forbade them to retain. The "equal footing" clause, in other words, prevents one State from laying claim to a part of the national domain from which the other States are excluded. 339 U.S., at 719 -720. Today we permit that precise "inequality among the States" which we earlier said was precluded by the "equal footing" clause. Alabama and Rhode Island can justly complain. So can the other States. Our Union is one of equal sovereigns, none entitled to preferment denied the others. That is what the "equal footing" standard means or it means nothing. Today powerful political forces are marshalled to wipe out our prior decisions for the benefit of a favored few. But those decisions were sound in constitutional theory and they should stand. If they presented a question suitable for judicial review, so does the present controversy. [347 U.S. 272, 284]

liberal

public_entity

federalism

1964-055-03

United States Supreme Court UNITED STATES v. SEEGER(1965) No. 50 Argued: Decided: March 8, 1965 [Footnote * Together with No. 51, United States v. Jakobson, on certiorari to the same court, and No. 29, Peter v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit. These three cases involve the exemption claims under 6 (j) of the Universal Military Training and Service Act of conscientious objectors who did not belong to an orthodox religious sect. Section 6 (j) excepts from combatant service in the armed forces those who are conscientiously opposed to participation in war by reason of their "religious training and belief," i. e., belief in an individual's relation to a Supreme Being involving duties beyond a human relationship but not essentially political, sociological, or philosophical views or a merely personal moral code. In all the cases convictions were obtained in the District Courts for refusal to submit to induction in the armed forces; in Nos. 50 and 51 the Court of Appeals reversed and in No. 29 the conviction was affirmed. Held: 1. The test of religious belief within the meaning of the exemption in 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Pp. 173-180. (a) The exemption does not cover those who oppose war from a merely personal moral code nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations rather than religious belief. P. 173. (b) There is no issue here of atheistic beliefs and accordingly the decision does not deal with that question. Pp. 173-174. (c) This test accords with long-established legislative policy of equal treatment for those whose objection to military service is based on religious beliefs. Pp. 177-180. 2. Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious: they are not to require proof of the religious [380 U.S. 163, 164] doctrines nor are they to reject beliefs because they are not comprehensible. Pp. 184-185. 3. Under the broad construction applicable to 6 (j) the applications involved in these cases, none of which was based on merely personal moral codes, qualified for exemption. Pp. 185-188. 326 F.2d 846 and 325 F.2d 409, affirmed; 324 F.2d 173, reversed. Solicitor General Cox argued the cause for the United States in all cases. Assistant Attorney General Miller was with him on the briefs in all cases. Ralph S. Spritzer was with him on the briefs in Nos. 50 and 51, and Marshall Tamor Golding was with him on the briefs in No. 50. Duane B. Beeson argued the cause and filed a brief for petitioner in No. 29. Kenneth W. Greenawalt argued the cause and filed a brief for respondent in No. 50. Herman Adlerstein argued the cause and filed a brief for respondent in No. 51. Briefs of amici curiae, urging affirmance in Nos. 50 and 51 and reversal in No. 29, were filed by Alfred Lawrence Toombs and Melvin L. Wulf for the American Civil Liberties Union, and by Leo Pfeffer, Shad Polier, Will Maslow and Joseph B. Robison for the American Jewish Congress. Briefs of amici curiae, urging affirmance in No. 50, were filed by Herbert A. Wolff, Leo Rosen, Nanette Dembitz and Nancy F. Wechsler for the American Ethical Union, and by Tolbert H. McCarroll, Lester Forest and Paul Blanshard for the American Humanist Association. MR. JUSTICE CLARK delivered the opinion of the Court. These cases involve claims of conscientious objectors under 6 (j) of the Universal Military Training and Service Act, 50 U.S.C. App. 456 (j) (1958 ed.), which exempts from combatant training and service in the armed forces of the United States those persons who by [380 U.S. 163, 165] reason of their religious training and belief are conscientiously opposed to participation in war in any form. The cases were consolidated for argument and we consider them together although each involves different facts and circumstances. The parties raise the basic question of the constitutionality of the section which defines the term "religious training and belief," as used in the Act, as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." The constitutional attack is launched under the First Amendment's Establishment and Free Exercise Clauses and is twofold: (1) The section does not exempt nonreligious conscientious objectors; and (2) it discriminates between different forms of religious expression in violation of the Due Process Clause of the Fifth Amendment. Jakobson (No. 51) and Peter (No. 29) also claim that their beliefs come within the meaning of the section. Jakobson claims that he meets the standards of 6 (j) because his opposition to war is based on belief in a Supreme Reality and is therefore an obligation superior to one resulting from man's relationship to his fellow man. Peter contends that his opposition to war derives from his acceptance of the existence of a universal power beyond that of man and that this acceptance in fact constitutes belief in a Supreme Being, qualifying him for exemption. We granted certiorari in each of the cases because of their importance in the administration of the Act. 377 U.S. 922 . We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not. We have concluded that the beliefs of the objectors in these cases meet these criteria, and, accordingly, we affirm the judgments in Nos. 50 and 51 and reverse the judgment in No. 29. THE FACTS IN THE CASES. No. 50: Seeger was convicted in the District Court for the Southern District of New York of having refused to submit to induction in the armed forces. He was originally classified 1-A in 1953 by his local board, but this classification was changed in 1955 to 2-S (student) and he remained in this status until 1958 when he was reclassified 1-A. He first claimed exemption as a conscientious objector in 1957 after successive annual renewals of his student classification. Although he did not adopt verbatim the printed Selective Service System form, he declared that he was conscientiously opposed to participation in war in any form by reason of his "religious" belief; that he preferred to leave the question as to his belief in a Supreme Being open, "rather than answer `yes' or `no'"; that his "skepticism or disbelief in the existence of God" did "not necessarily mean lack of faith in anything whatsoever"; that his was a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed." R. 69-70, 73. He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral integrity "without belief in God, except in the remotest sense." R. 73. His belief was found to be sincere, honest, [380 U.S. 163, 167] and made in good faith; and his conscientious objection to be based upon individual training and belief, both of which included research in religious and cultural fields. Seeger's claim, however, was denied solely because it was not based upon a "belief in a relation to a Supreme Being" as required by 6 (j) of the Act. At trial Seeger's counsel admitted that Seeger's belief was not in relation to a Supreme Being as commonly understood, but contended that he was entitled to the exemption because "under the present law Mr. Seeger's position would also include definitions of religion which have been stated more recently," R. 49, and could be "accommodated" under the definition of religious training and belief in the Act, R. 53. He was convicted and the Court of Appeals reversed, holding that the Supreme Being requirement of the section distinguished "between internally derived and externally compelled beliefs" and was, therefore, an "impermissible classification" under the Due Process Clause of the Fifth Amendment. 326 F.2d 846. No. 51: Jakobson was also convicted in the Southern District of New York on a charge of refusing to submit to induction. On his appeal the Court of Appeals reversed on the ground that rejection of his claim may have rested on the factual finding, erroneously made, that he did not believe in a Supreme Being as required by 6 (j). 325 F.2d 409. Jakobson was originally classified 1-A in 1953 and intermittently enjoyed a student classification until 1956. It was not until April 1958 that he made claim to noncombatant classification (1-A-O) as a conscientious objector. He stated on the Selective Service System form that he believed in a "Supreme Being" who was "Creator of Man" in the sense of being "ultimately responsible for the existence of" man and who was "the Supreme Reality" of which "the existence of man is the result." R. 44. (Emphasis in the original.) He explained that his religious [380 U.S. 163, 168] and social thinking had developed after much meditation and thought. He had concluded that man must be "partly spiritual" and, therefore, "partly akin to the Supreme Reality"; and that his "most important religious law" was that "no man ought ever to wilfully sacrifice another man's life as a means to any other end . . . ." R. 45-46. In December 1958 he requested a 1-O classification since he felt that participation in any form of military service would involve him in "too many situations and relationships that would be a strain on [his] conscience that [he felt he] must avoid." R. 70. He submitted a long memorandum of "notes on religion" in which he defined religion as the "sum and essence of one's basic attitudes to the fundamental problems of human existence," R. 72 (emphasis in the original); he said that he believed in "Godness" which was "the Ultimate Cause for the fact of the Being of the Universe"; that to deny its existence would but deny the existence of the universe because "anything that Is, has an Ultimate Cause for its Being." R. 73. There was a relationship to Godness, he stated, in two directions, i. e., "vertically, towards Godness directly," and "horizontally, towards Godness through Mankind and the World." R. 74. He accepted the latter one. The Board classified him 1-A-O and Jakobson appealed. The hearing officer found that the claim was based upon a personal moral code and that he was not sincere in his claim. The Appeal Board classified him 1-A. It did not indicate upon what ground it based its decision, i. e., insincerity or a conclusion that his belief was only a personal moral code. The Court of Appeals reversed, finding that his claim came within the requirements of 6 (j). Because it could not determine whether the Appeal Board had found that Jakobson's beliefs failed to come within the statutory definition, or whether it had concluded that he lacked sincerity, it directed dismissal of the indictment. [380 U.S. 163, 169] No. 29: Forest Britt Peter was convicted in the Northern District of California on a charge of refusing to submit to induction. In his Selective Service System form he stated that he was not a member of a religious sect or organization; he failed to execute section VII of the questionnaire but attached to it a quotation expressing opposition to war, in which he stated that he concurred. In a later form he hedged the question as to his belief in a Supreme Being by saying that it depended on the definition and he appended a statement that he felt it a violation of his moral code to take human life and that he considered this belief superior to his obligation to the state. As to whether his conviction was religious, he quoted with approval Reverend John Haynes Holmes' definition of religion as "the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands . . . [; it] is the supreme expression of human nature; it is man thinking his highest, feeling his deepest, and living his best." R. 27. The source of his conviction he attributed to reading and meditation "in our democratic American culture, with its values derived from the western religious and philosophical tradition." Ibid. As to his belief in a Supreme Being, Peter stated that he supposed "you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use." R. 11. In 1959 he was classified 1-A, although there was no evidence in the record that he was not sincere in his beliefs. After his conviction for failure to report for induction the Court of Appeals, assuming arguendo that he was sincere, affirmed, 324 F.2d 173. BACKGROUND OF 6 (j). Chief Justice Hughes, in his opinion in United States v. Macintosh, 283 U.S. 605 (1931), enunciated the rationale behind the long recognition of conscientious objection [380 U.S. 163, 170] to participation in war accorded by Congress in our various conscription laws when he declared that "in the forum of conscience, duty to a moral power higher than the State has always been maintained." At 633 (dissenting opinion). In a similar vein Harlan Fiske Stone, later Chief Justice, drew from the Nation's past when he declared that "both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process." Stone, The Conscientious Objector, 21 Col. Univ. Q. 253, 269 (1919). Governmental recognition of the moral dilemma posed for persons of certain religious faiths by the call to arms came early in the history of this country. Various methods of ameliorating their difficulty were adopted by the Colonies, and were later perpetuated in state statutes and constitutions. Thus by the time of the Civil War there existed a state pattern of exempting conscientious objectors on religious grounds. In the Federal Militia Act of 1862 control of conscription was left primarily in the States. However, General Order No. 99, issued by the Adjutant General pursuant to that Act, provided for striking from the conscription list those who were exempted by the States; it also established a commutation or substitution system fashioned from earlier state enactments. With the Federal Conscription Act of 1863, [380 U.S. 163, 171] which enacted the commutation and substitution provisions of General Order No. 99, the Federal Government occupied the field entirely, and in the 1864 Draft Act, 13 Stat. 9, it extended exemptions to those conscientious objectors who were members of religious denominations opposed to the bearing of arms and who were prohibited from doing so by the articles of faith of their denominations. Selective Service System Monograph No. 11, Conscientious Objection 40-41 (1950). In that same year the Confederacy exempted certain pacifist sects from military duty. Id., at 46. The need for conscription did not again arise until World War I. The Draft Act of 1917, 40 Stat. 76, 78, afforded exemptions to conscientious objectors who were affiliated with a "well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles [forbade] its members to participate in war in any form . . . ." The Act required that all persons be inducted into the armed services, but allowed the conscientious objectors to perform noncombatant service in capacities designated by the President of the United States. Although the 1917 Act excused religious objectors only, in December 1917, the Secretary of War instructed that "personal scruples against war" be considered as constituting "conscientious objection." Selective Service System Monograph No. 11, Conscientious Objection 54-55 (1950). This Act, including its conscientious objector provisions, was upheld against constitutional attack in the Selective Draft Law Cases, 245 U.S. 366, 389 -390 (1918). In adopting the 1940 Selective Training and Service Act Congress broadened the exemption afforded in the 1917 Act by making it unnecessary to belong to a pacifist religious sect if the claimant's own opposition to war was based on "religious training and belief." 54 Stat. 889. Those found to be within the exemption were [380 U.S. 163, 172] not inducted into the armed services but were assigned to noncombatant service under the supervision of the Selective Service System. The Congress recognized that one might be religious without belonging to an organized church just as surely as minority members of a faith not opposed to war might through religious reading reach a conviction against participation in war. Congress Looks at the Conscientious Objector (National Service Board for Religious Objectors, 1943) 71, 79, 83, 87, 88, 89. Indeed, the consensus of the witnesses appearing before the congressional committees was that individual belief - rather than membership in a church or sect - determined the duties that God imposed upon a person in his everyday conduct; and that "there is a higher loyalty than loyalty to this country, loyalty to God." Id., at 29-31. See also the proposals which were made to the House Military Affairs Committee but rejected. Id., at 21-23. 82-83. 85. Thus, while shifting the test from membership in such a church to one's individual belief the Congress nevertheless continued its historic practice of excusing from armed service those who believed that they owed an obligation, superior to that due the state, of not participating in war in any form. Between 1940 and 1948 two courts of appeals 1 held that the phrase "religious training and belief" did not include philosophical, social or political policy. Then in 1948 the Congress amended the language of the statute and declared that "religious training and belief" was to be defined as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." The only significant mention of [380 U.S. 163, 173] this change in the provision appears in the report of the Senate Armed Services Committee recommending adoption. It said simply this: "This section reenacts substantially the same provisions as were found in subsection 5 (g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relation to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari denied, 329 U.S. 795 .)" S. Rep. No. 1268, 80th Cong., 2d Sess., 14. INTERPRETATION OF 6 (j). 1. The crux of the problem lies in the phrase "religious training and belief" which Congress has defined as "belief in a relation to a Supreme Being involving duties superior to those arising from any human relation." In assigning meaning to this statutory language we may narrow the inquiry by noting briefly those scruples expressly excepted from the definition. The section excludes those persons who, disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it. These judgments have historically been reserved for the Government, and in matters which can be said to fall within these areas the conviction of the individual has never been permitted to override that of the state. United States v. Macintosh, supra (dissenting opinion). The statute further excludes those whose opposition to war stems from a "merely personal moral code," a phrase to which we shall have occasion to turn later in discussing the application of 6 (j) to these cases. We also pause to take note of what is not involved in this litigation. No party claims to be an atheist or attacks the statute on this ground. The question is not, therefore, one between theistic and atheistic beliefs. We do not deal with [380 U.S. 163, 174] or intimate any decision on that situation in these cases. Nor do the parties claim the monotheistic belief that there is but one God; what they claim (with the possible exception of Seeger who bases his position here not on factual but on purely constitutional grounds) is that they adhere to theism, which is the "Belief in the existence of a god or gods; . . . Belief in superhuman powers or spiritual agencies in one or many gods," as opposed to atheism. 2 Our question, therefore, is the narrow one: Does the term "Supreme Being" as used in 6 (j) mean the orthodox God or the broader concept of a power or being, or a faith, "to which all else is subordinate or upon which all else is ultimately dependent"? Webster's New International Dictionary (Second Edition). In considering this question we resolve it solely in relation to the language of 6 (j) and not otherwise. 2. Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man's predicament in life, in death or in final judgment and retribution. This fact makes the task of discerning the intent of Congress in using the phrase "Supreme Being" a complex one. Nor is it made the easier by the richness and variety of spiritual life in our country. Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace. There are those who think of God as the depth of our being; others, such as the Buddhists, strive for a state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme Being is [380 U.S. 163, 175] the transcendental reality which is truth, knowledge and bliss. Even those religious groups which have traditionally opposed war in every form have splintered into various denominations: from 1940 to 1947 there were four denominations using the name "Friends," Selective Service System Monograph No. 11, Conscientious Objection 13 (1950); the "Church of the Brethren" was the official name of the oldest and largest church body of four denominations composed of those commonly called Brethren, id., at 11; and the "Mennonite Church" was the largest of 17 denominations, including the Amish and Hutterites, grouped as "Mennonite bodies" in the 1936 report on the Census of Religious Bodies, id., at 9. This vast panoply of beliefs reveals the magnitude of the problem which faced the Congress when it set about providing an exemption from armed service. It also emphasizes the care that Congress realized was necessary in the fashioning of an exemption which would be in keeping with its long-established policy of not picking and choosing among religious beliefs. In spite of the elusive nature of the inquiry, we are not without certain guidelines. In amending the 1940 Act, Congress adopted almost intact the language of Chief Justice Hughes in United States v. Macintosh, supra: "The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." At 633-634. (Emphasis supplied.) By comparing the statutory definition with those words, however, it becomes readily apparent that the Congress deliberately broadened them by substituting the phrase "Supreme Being" for the appellation "God." And in so doing it is also significant that Congress did not elaborate on the form or nature of this higher authority which it chose to designate as "Supreme Being." By so refraining it must have had in mind the admonitions of the Chief [380 U.S. 163, 176] Justice when he said in the same opinion that even the word "God" had myriad meanings for men of faith: "[P]utting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field." At 634. Moreover, the Senate Report on the bill specifically states that 6 (j) was intended to re-enact "substantially the same provisions as were found" in the 1940 Act. That statute, of course, refers to "religious training and belief" without more. Admittedly, all of the parties here purport to base their objection on religious belief. It appears, therefore, that we need only look to this clear statement of congressional intent as set out in the report. Under the 1940 Act it was necessary only to have a conviction based upon religious training and belief; we believe that is all that is required here. Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets. [380 U.S. 163, 177] 3. The Government takes the position that since Berman v. United States, supra, was cited in the Senate Report on the 1948 Act, Congress must have desired to adopt the Berman interpretation of what constitutes "religious belief." Such a claim, however, will not bear scrutiny. First, we think it clear that an explicit statement of congressional intent deserves more weight than the parenthetical citation of a case which might stand for a number of things. Congress specifically stated that it intended to re-enact substantially the same provisions as were found in the 1940 Act. Moreover, the history of that Act reveals no evidence of a desire to restrict the concept of religious belief. On the contrary the Chairman of the House Military Affairs Committee which reported out the 1940 exemption provisions stated: "We heard the conscientious objectors and all of their representatives that we could possibly hear, and, summing it all up, their whole objection to the bill, aside from their objection to compulsory military training, was based upon the right of conscientious objection and in most instances to the right of the ministerial students to continue in their studies, and we have provided ample protection for those classes and those groups." 86 Cong. Rec. 11368 (1940). During the House debate on the bill, Mr. Faddis of Pennsylvania made the following statement: "We have made provision to take care of conscientious objectors. I am sure the committee has had all the sympathy in the world with those who appeared claiming to have religious scruples against rendering military service in its various degrees. Some appeared who had conscientious scruples against handling lethal weapons, but who had no [380 U.S. 163, 178] scruples against performing other duties which did not actually bring them into combat. Others appeared who claimed to have conscientious scruples against participating in any of the activities that would go along with the Army. The committee took all of these into consideration and has written a bill which. I believe, will take care of all the reasonable objections of this class of people." 86 Cong. Rec. 11418 (1940). Thus the history of the Act belies the notion that it was to be restrictive in application and available only to those believing in a traditional God. As for the citation to Berman, it might mean a number of things. But we think that Congress' action in citing it must be construed in such a way as to make it consistent with its express statement that it meant substantially to re-enact the 1940 provision. As far as we can find, there is not one word to indicate congressional concern over any conflict between Kauten and Berman. Surely, if it thought that two clashing interpretations as to what amounted to "religious belief" had to be resolved. it would have said so somewhere in its deliberations. Thus, we think that rather than citing Berman for what it said "religious belief" was, Congress cited it for what it said "religious belief" was not. For both Kauten and Berman hold in common the conclusion that exemption must be denied to those whose beliefs are political, social or philosophical in nature, rather than religious. Both, in fact, denied exemption on that very ground. It seems more likely, therefore, that it was this point which led Congress to cite Berman. The first part of the 6 (j) definition - belief in a relation to a Supreme Being - was indeed set out in Berman, with the exception that the court used the word "God" rather than "Supreme Being." However, as the Government recognizes, Berman took that language word for word from Macintosh. Far from [380 U.S. 163, 179] requiring a conclusion contrary to the one we reach here, Chief Justice Hughes' opinion, as we have pointed out, supports our interpretation. Admittedly, the second half of the statutory definition - the rejection of sociological and moral views - was taken directly from Berman. But, as we have noted, this same view was adhered to in United States v. Kauten, supra. Indeed the Selective Service System has stated its view of the cases' significance in these terms: "The United States v. Kauten and Herman Berman v. United States cases ruled that a valid conscientious objector claim to exemption must be based solely on `religious training and belief' and not on philosophical, political, social, or other grounds . . . ." Selective Service System Monograph No. 11, Conscientious Objection 337 (1950). See id., at 278. That the conclusions of the Selective Service System are not to be taken lightly is evidenced in this statement by Senator Gurney, Chairman of the Senate Armed Services Committee and sponsor of the Senate bill containing the present version of 6 (j): "The bill which is now pending follows the 1940 act, with very few technical amendments, worked out by those in Selective Service who had charge of the conscientious-objector problem during the war." 94 Cong. Rec. 7305 (1948). Thus we conclude that in enacting 6 (j) Congress simply made explicit what the courts of appeals had correctly found implicit in the 1940 Act. Moreover, it is perfectly reasonable that Congress should have selected Berman for its citation, since this Court denied certiorari in that case, a circumstance not present in Kauten. Section 6 (j), then, is no more than a clarification of the 1940 provision involving only certain "technical amendments," to use the words of Senator Gurney. As such it continues the congressional policy of providing exemption from military service for those whose opposition [380 U.S. 163, 180] is based on grounds that can fairly be said to be "religious." 3 To hold otherwise would not only fly in the face of Congress' entire action in the past; it would ignore the historic position of our country on this issue since its founding. 4. Moreover, we believe this construction embraces the ever-broadening understanding of the modern religious community. The eminent Protestant theologian, Dr. Paul Tillich, whose views the Government concedes would come within the statute, identifies God not as a projection "out there" or beyond the skies but as the ground of our very being. The Court of Appeals stated in No. 51 that Jakobson's views "parallel [those of] this eminent theologian rather strikingly." 325 F.2d, at 415-416. In his book, Systematic Theology, Dr. Tillich says: "I have written of the God above the God of theism . . . . In such a state [of self-affirmation] the God of both religious and theological language disappears. But something remains, namely, the seriousness of that doubt in which meaning within meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness, of certitude within doubt, is not the God of traditional theism but the `God above God,' the power of being, which works through those who have no name for it, not even the name God." II Systematic Theology 12 (1957). [380 U.S. 163, 181] Another eminent cleric, the Bishop of Woolwich, John A. T. Robinson, in his book, Honest To God (1963), states: "The Bible speaks of a God `up there.' No doubt its picture of a three-decker universe, of `the heaven above, the earth beneath and the waters under the earth,' was once taken quite literally. . . ." At 11. "[Later] in place of a God who is literally or physically `up there' we have accepted, as part of our mental furniture, a God who is spiritually or metaphysically `out there.' . . . But now it seems there is no room for him, not merely in the inn, but in the entire universe: for there are no vacant places left. In reality, of course, our new view of the universe has made not the slightest difference. . . ." At 13-14. "But the idea of a God spiritually or metaphysically `out there' dies very much harder. Indeed, most people would be seriously disturbed by the thought that it should need to die at all. For it is their God, and they have nothing to put in its place. . . . Every one of us lives with some mental picture of a God `out there,' a God who `exists' above and beyond the world he made, a God `to' whom we pray and to whom we `go' when we die." At 14. "But the signs are that we are reaching the point at which the whole conception of a God `out there,' which has served us so well since the collapse of the three-decker universe, is itself becoming more of a hindrance than a help." At 15-16. (Emphasis in original.) The Schema of the recent Ecumenical Council included a most significant declaration on religion: 4 [380 U.S. 163, 182] "The community of all peoples is one. One is their origin, for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human condition: What is man? What is the meaning and purpose of our lives? What is the moral good and what is sin? What are death, judgment, and retribution after death? . . . . . "Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in an advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to man's religious questions. . . . . . "Nothing that is true and holy in these religions is scorned by the Catholic Church. Ceaselessly the Church proclaims Christ, `the Way, the Truth, and the Life,' in whom God reconciled all things to Himself. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, although they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men." Dr. David Saville Muzzey, a leader in the Ethical Culture Movement, states in his book, Ethics As a Religion (1951), that "[e]verybody except the avowed atheists (and they are comparatively few) believes in some kind of God," and that "The proper question to ask, therefore, is [380 U.S. 163, 183] not the futile one, Do you believe in God? but rather, What kind of God do you believe in?" Id., at 86-87. Dr. Muzzey attempts to answer that question: "Instead of positing a personal God, whose existence man can neither prove nor disprove, the ethical concept is founded on human experience. It is anthropocentric, not theocentric. Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive. And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavors to cultivate the best in their fellow men. What ultimate reality is we do not know; but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose." At 95. "Thus the `God' that we love is not the figure on the great white throne, but the perfect pattern, envisioned by faith, of humanity as it should be, purged of the evil elements which retard its progress toward `the knowledge, love and practice of the right.'" At 98. These are but a few of the views that comprise the broad spectrum of religious beliefs found among us. But they demonstrate very clearly the diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. They further reveal the difficulties inherent in placing too narrow a construction on the provisions of 6 (j) and thereby lend conclusive support to the construction which we today find that Congress intended. 5. We recognize the difficulties that have always faced the trier of fact in these cases. We hope that the test that we lay down proves less onerous. The examiner is furnished [380 U.S. 163, 184] a standard that permits consideration of criteria with which he has had considerable experience. While the applicant's words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption? Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight. Recognition of this was implicit in this language, cited by the Berman court from State v. Amana Society, 132 Iowa 304, 109 N. W. 894 (1906): "Surely a scheme of life designed to obviate [man's inhumanity to man], and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotees regard it as an essential tenet of their religious faith." 132 Iowa, at 315, 109 N. W., at 898, cited in Berman v. United States, 156 F.2d 377, 381. (Emphasis by the Court of Appeals.) The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's "Supreme Being" or the truth of his concepts. But these are inquiries foreclosed to Government. AS MR. JUSTICE DOUGLAS stated in United States v. Ballard, 322 U.S. 78, 86 (1944): "Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others." Local [380 U.S. 163, 185] boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious. But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact - a prime consideration to the validity of every claim for exemption as a conscientious objector. The Act provides a comprehensive scheme for assisting the Appeal Boards in making this determination, placing at their service the facilities of the Department of Justice, including the Federal Bureau of Investigation and hearing officers. Finally, we would point out that in Estep v. United States, 327 U.S. 114 (1946), this Court held that: "The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." At 122-123. APPLICATION OF 6 (j) TO THE INSTANT CASES. As we noted earlier, the statutory definition excepts those registrants whose beliefs are based on a "merely personal moral code." The records in these cases, however, [380 U.S. 163, 186] show that at no time did any one of the applicants suggest that his objection was based on a "merely personal moral code." Indeed at the outset each of them claimed in his application that his objection was based on a religious belief. We have construed the statutory definition broadly and it follows that any exception to it must be interpreted narrowly The use by Congress of the words "merely personal" seems to us to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrant's belief and is in no way related to a Supreme Being. It follows, therefore, that if the claimed religious beliefs of the respective registrants in these cases meet the test that we lay down then their objections cannot be based on a "merely personal" moral code. In Seeger, No. 50, the Court of Appeals failed to find sufficient "externally compelled beliefs." However, it did find that "it would seem impossible to say with assurance that [Seeger] is not bowing to `external commands' in virtually the same sense as is the objector who defers to the will of a supernatural power." 326 F.2d, at 853. It found little distinction between Jakobson's devotion to a mystical force of "Godness" and Seeger's compulsion to "goodness." Of course, as we have said, the statute does not distinguish between externally and internally derived beliefs. Such a determination would, as the Court of Appeals observed, prove impossible as a practical matter, and we have found that Congress intended no such distinction. The Court of Appeals also found that there was no question of the applicant's sincerity. He was a product of a devout Roman Catholic home; he was a close student of Quaker beliefs from which he said "much of [his] thought is derived"; he approved of their opposition to war in any form; he devoted his spare hours to the American [380 U.S. 163, 187] Friends Service Committee and was assigned to hospital duty. In summary, Seeger professed "religious belief" and "religious faith." He did not disavow any belief "in a relation to a Supreme Being"; indeed he stated that "the cosmic order does, perhaps, suggest a creative intelligence." He decried the tremendous "spiritual" price man must pay for his willingness to destroy human life. In light of his beliefs and the unquestioned sincerity with which he held them, we think the Board, had it applied the test we propose today, would have granted him the exemption. We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers. We are reminded once more of Dr. Tillich's thoughts: "And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God . . . ." Tillich, The Shaking of the Foundations 57 (1948). (Emphasis supplied.) It may be that Seeger did not clearly demonstrate what his beliefs were with regard to the usual understanding of the term "Supreme Being." But as we have said Congress did not intend that to be the test. We therefore affirm the judgment in No. 50. In Jakobson, No. 51, the Court of Appeals found that the registrant demonstrated that his belief as to opposition to war was related to a Supreme Being. We agree and affirm that judgment. We reach a like conclusion in No. 29. It will be remembered that Peter acknowledged "some power manifest in [380 U.S. 163, 188] nature . . . the supreme expression" that helps man in ordering his life. As to whether he would call that belief in a Supreme Being, he replied, "you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use." We think that under the test we establish here the Board would grant the exemption to Peter and we therefore reverse the judgment in No. 29. It is so ordered. Footnotes [Footnote 1 See United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943); Berman v. United States, 156 F.2d 377 (C. A. 9th Cir. 1946). [Footnote 2 See Webster's New International Dictionary (Second Edition); Webster's New Collegiate Dictionary (1949). [Footnote 3 A definition of "religious training and belief" identical to that in 6 (j) is found in 337 of the Immigration and Nationality Act, 66 Stat. 258, 8 U.S.C. 1448 (a) (1958 ed.). It is noteworthy that in connection with this Act, the Senate Special Subcommittee to Investigate Immigration and Naturalization stated: "The subcommittee realizes and respects the fact that the question of whether or not a person must bear arms in defense of his country may be one which invades the province of religion and personal conscience." Thus, it recommended that an alien not be required to vow to bear arms when he asserted "his opposition to participation in war in any form because of his personal religious training and belief." S. Rep. No. 1515, 81st Cong., 2d Sess., 742, 746. [Footnote 4 Draft declaration on the Church's relations with non-Christians, Council Daybook, Vatican II, 3d Sess., p. 282, N.C. W. C., Washington, D.C., 1965. MR. JUSTICE DOUGLAS, concurring. If I read the statute differently from the Court, I would have difficulties. For then those who embraced one religious faith rather than another would be subject to penalties; and that kind of discrimination, as we held in Sherbert v. Verner, 374 U.S. 398 , would violate the Free Exercise Clause of the First Amendment. It would also result in a denial of equal protection by preferring some religions over others - an invidious discrimination that would run afoul of the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 . The legislative history of this Act leaves much in the dark. But it is, in my opinion, not a tour de force if we construe the words "Supreme Being" to include the cosmos, as well as an anthropomorphic entity. If it is a tour de force so to hold, it is no more so than other instances where we have gone to extremes to construe an Act of Congress to save it from demise on constitutional grounds. In a more extreme case than the present one we said that the words of a statute may be strained "in the candid service of avoiding a serious constitutional doubt." United States v. Rumely, 345 U.S. 41, 47 . 1 [380 U.S. 163, 189] The words "a Supreme Being" have no narrow technical meaning in the field of religion. Long before the birth of our Judeo-Christian civilization the idea of God had taken hold in many forms. Mention of only two - Hinduism and Buddhism - illustrates the fluidity and evanescent scope of the concept. In the Hindu religion the Supreme Being is conceived in the forms of several cult Deities. The chief of these, which stand for the Hindu Triad, are Brahma, Vishnu and Siva. Another Deity, and the one most widely worshipped, is Sakti, the Mother Goddess, conceived as power, both destructive and creative. Though Hindu religion encompasses the worship of many Deities, it believes in only one single God, the eternally existent One Being with his manifold attributes and manifestations. This idea is expressed in Rigveda, the earliest sacred text of the Hindus, in verse 46 of a hymn attributed to the mythical seer Dirghatamas (Rigveda, I, 164): "They call it Indra, Mitra, Varuna and Agni And also heavenly beautiful Garutman: The Real is One, though sages name it variously - They call it Agni, Yama, Matarisvan." See Smart, Reasons and Faiths, p. 35, n. 1 (1958); 32 Harvard Oriental Series, pp. 434-435 (Lanman ed. 1925). See generally 31 and 32 id.; Editors of Life Magazine. The World's Great Religions, Vol. 1, pp. 17-48 (1963). Indian philosophy, which comprises several schools of thought, has advanced different theories of the nature of the Supreme Being. According to the Upanisads, Hindu sacred texts, the Supreme Being is described as the power which creates and sustains everything, and to which the created things return upon dissolution. The word which is commonly used in the Upanisads to indicate the Supreme Being is Brahman. Philosophically, the [380 U.S. 163, 190] Supreme Being is the transcendental Reality which is Truth, Knowledge, and Bliss. It is the source of the entire universe. In this aspect Brahman is Isvara, a personal Lord and Creator of the universe, an object of worship. But, in the view of one school of thought, that of Sankara, even this is an imperfect and limited conception of Brahman which must be transcended: to think of Brahman as the Creator of the material world is necessarily to form a concept infected with illusion, or maya - which is what the world really is, in highest truth. Ultimately, mystically, Brahman must be understood as without attributes, as neti neti (not this, not that). See Smart, op. cit., supra, p. 133. Buddhism - whose advent marked the reform of Hinduism - continued somewhat the same concept. As stated by Nancy Wilson Ross, "God - if I may borrow that word for a moment - the universe, and man are one indissoluble existence, one total whole. Only THIS - capital THIS - is. Anything and everything that appears to us as an individual entity or phenomenon, whether it be a planet or an atom, a mouse or a man, is but a temporary manifestation of THIS in form; every activity that takes place, whether it be birth or death, loving or eating breakfast, is but a temporary manifestation of THIS in activity. When we look at things this way, naturally we cannot believe that each individual person has been endowed with a special and individual soul or self. Each one of us is but a cell, as it were, in the body of the Great Self, a cell that comes into being, performs its functions, and passes away, transformed into another manifestation. Though we have temporary individuality, that temporary, limited individuality is not either a true self or our true self. Our true self is the Great Self; our true body is the Body of Reality, or the Dharmakaya, to give it its technical Buddhist name." The World of Zen, p. 18 (1960). [380 U.S. 163, 191] Does a Buddhist believe in "God" or a "Supreme Being"? That, of course, depends on how one defines "God," as one eminent student of Buddhism has explained: "It has often been suggested that Buddhism is an atheistic system of thought, and this assumption has given rise to quite a number of discussions. Some have claimed that since Buddhism knew no God, it could not be a religion; others that since Buddhism obviously was a religion which knew no God, the belief in God was not essential to religion. These discussions assume that God is an unambiguous term, which is by no means the case." Conze, Buddhism, pp. 38-39 (1959). Dr. Conze then says that if "God" is taken to mean a personal Creator of the universe, then the Buddhist has no interest in the concept. Id., p. 39. But if "God" means something like the state of oneness with God as described by some Christian mystics, then the Buddhist surely believes in "God," since this state is almost indistinguishable from the Buddhist concept of Nirvana, "the supreme Reality; . . . the eternal, hidden and incomprehensible Peace." Id., pp. 39-40. And finally, if "God" means one of the many Deities in an at least superficially polytheistic religion like Hinduism, then Buddhism tolerates a belief in many Gods: "the Buddhists believe that a Faith can be kept alive only if it can be adapted to the mental habits of the average person. In consequence, we find that, in the earlier Scriptures, the deities of Brahmanism are taken for granted and that, later on, the Buddhists adopted the local Gods of any district to which they came." Id., p. 42. When the present Act was adopted in 1948 we were a nation of Buddhists, Confucianists, and Taoists, as well as Christians. Hawaii, then a Territory, was indeed filled with Buddhists, Buddhism being "probably the major [380 U.S. 163, 192] faith, if Protestantism and Roman Catholicism are deemed different faiths." Stokes and Pfeffer, Church and State in the United States, p. 560 (1964). Organized Buddhism first came to Hawaii in 1887 when Japanese laborers were brought to work on the plantations. There are now numerous Buddhist sects in Hawaii, and the temple of the Shin sect in Honolulu is said to have the largest congregation of any religious organization in the city. See Mulholland, Religion in Hawaii, pp. 44-50 (1961). In the continental United States Buddhism is found "in real strength" in Utah, Arizona, Washington, Oregon, and California. "Most of the Buddhists in the United States are Japanese or Japanese-Americans; however, there are `English' departments in San Francisco, Los Angeles, and Tacoma." Mead, Handbook of Denominations, p. 61 (1961). The Buddhist Churches of North America, organized in 1914 as the Buddhist Mission of North America and incorporated under the present name in 1942, represent the Jodo Shinshu Sect of Buddhism in this country. This sect is the only Buddhist group reporting information to the annual Yearbook of American Churches. In 1961, the latest year for which figures are available, this group alone had 55 churches and an inclusive membership of 60,000; it maintained 89 church schools with a total enrollment of 11,150. Yearbook of American Churches, p. 30 (1965). According to one source, the total number of Buddhists of all sects in North America is 171,000. See World Almanac, p. 636 (1965). When the Congress spoke in the vague general terms of a Supreme Being I cannot, therefore, assume that it was so parochial as to use the words in the narrow sense urged on us. I would attribute tolerance and sophistication to the Congress, commensurate with the religious complexion of our communities. In sum, I agree with the Court that any person opposed to war on the basis of a sincere belief, which in his life fills the same place as a belief [380 U.S. 163, 193] in God fills in the life of an orthodox religionist, is entitled to exemption under the statute. None comes to us an avowedly irreligious person or as an atheist; 2 one, as a sincere believer in "goodness and virtue for their own sakes." His questions and doubts on theological issues, and his wonder, are no more alien to the statutory standard than are the awe-inspired questions of a devout Buddhist. [Footnote 1 And see Crowell v. Benson, 285 U.S. 22, 62 ; Ullmann v. United States, 350 U.S. 422, 433 ; Ashwander v. TVA, 297 U.S. 288, 341 , 348 (concurring opinion). [Footnote 2 If he were an atheist, quite different problems would be presented. Cf. Torcaso v. Watkins, 367 U.S. 488 . [380 U.S. 163, 194]

liberal

public_entity

first_amendment

1970-076-01

United States Supreme Court UNITED STATES v. WHITE(1971) No. 13 Argued: November 10, 1969Decided: April 5, 1971 Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U.S. 347 (1967), as overruling On Lee v. United States, 343 U.S. 747 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction. Held: The judgment is reversed. Pp. 748-756. 405 F.2d 838, reversed. MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that: 1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 748-754. 2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 753-754. 3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States, 394 U.S. 244 , the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 754. MR. JUSTICE BLACK concurred in the judgment for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364 P. 754. [401 U.S. 745, 746] MR. JUSTICE BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 755. WHITE, J., announced the Court's judgment, and delivered an opinion in which BURGER, C. J., and STEWART and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 754. BRENNAN, J., filed an opinion concurring in the result, post, p. 755. DOUGLAS, J., post, p. 756, HARLAN, J., post, p. 768, and MARSHALL, J., post, p. 795, filed dissenting opinions. Assistant Attorney General Wilson reargued the cause for the United States. With him on the briefs were Solicitor General Griswold, Joseph J. Connolly, John S. Martin, Jr., Jerome M. Feit, Beatrice Rosenberg, and Sidney M. Glazer. John L. Boeger reargued the cause for respondent. With him on the brief were Morris A. Shenker and Chauncey Eskridge. Abraham Glasser and Maurice Edelbaum filed a brief for John G. Broady et al. as amici curiae urging affirmance. MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join. In 1966, respondent James A. White was tried and convicted under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U.S.C. 4705 (a) and 21 U.S.C. 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents [401 U.S. 745, 747] overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person. 1 On four occasions the conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent and by a second agent outside the house using a radio receiver. Four other conversations - one in respondent's home, one in a restaurant, and two in Jackson's car - were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict and defendant appealed. The Court of Appeals read Katz v. United States, 389 U.S. 347 (1967), as overruling On Lee v. United States, 343 U.S. 747 (1952), and interpreting the Fourth Amendment to forbid the introduction of the agents' testimony in the circumstances of this case. Accordingly, the court reversed but without adverting to the fact that the transactions at issue here had occurred before Katz was decided in this Court. In our view, the Court of Appeals misinterpreted both the Katz case and the Fourth Amendment and in any event erred in applying the Katz case to events that occurred before that decision was rendered by this Court. 2 [401 U.S. 745, 748] I Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant's Fourth Amendment rights "unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house `or curtilage' for the purpose of making a seizure." Olmstead v. United States, 277 U.S. 438, 466 (1928); Goldman v. United States, 316 U.S. 129, 135 -136 (1942). But where "eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied" by the defendant, although falling short of a "technical trespass under the local property law," the Fourth Amendment was violated and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States, 365 U.S. 505, 509 , 511 (1961); see also Wong Sun v. United States, 371 U.S. 471 (1963); Berger v. New York, 388 U.S. 41, 52 (1967); Alderman v. United States, 394 U.S. 165, 177 -178 (1969). Katz v. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In that case government agents, without petitioner's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz' words, thereby violating [401 U.S. 745, 749] the privacy on which he justifiably relied while using the telephone in those circumstances. The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Hoffa v. United States, 385 U.S. 293 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, "no interest legitimately protected by the Fourth Amendment is involved," for that amendment affords no protection to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, at 302. No warrant to "search and seize" is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427 (1963). Conceding that Hoffa, Lewis, and Lopez remained unaffected by Katz, 3 the Court of Appeals nevertheless [401 U.S. 745, 750] read both Katz and the Fourth Amendment to require a different result if the agent not only records his conversations with the defendant but instantaneously transmits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated and the testimony of the listening agents must be excluded from evidence. To reach this result it was necessary for the Court of Appeals to hold that On Lee v. United States was no longer good law. In that case, which involved facts very similar to the case before us, the Court first rejected claims of a Fourth Amendment violation because the informer had not trespassed when he entered the defendant's premises and conversed with him. To this extent the Court's rationale cannot survive Katz. See 389 U.S., at 352 -353. But the Court announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee since he "was talking confidentially and indiscreetly with one he trusted, and he was overheard. . . . It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here." 343 U.S., at 753 -754. We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the result reached in the On Lee case, 4 nor are we now inclined to overturn this view of the Fourth Amendment. [401 U.S. 745, 751] Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300 -303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now [401 U.S. 745, 752] before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable" - what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, 373 U.S. 427 (1963). Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, [401 U.S. 745, 753] particularly under the Fourth Amendment which is ruled by fluid concepts of "reasonableness." Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question. It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a "reasonable" investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an "unreasonable" and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra. No different result should obtain where, as in On Lee and the instant case, the informer disappears and is unavailable [401 U.S. 745, 754] at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer's disappearance, but they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights. II The Court of Appeals was in error for another reason. In Desist v. United States, 394 U.S. 244 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subsequent to the date of that decision. Here the events in question took place in late 1965 and early 1966, long prior to Katz. We adhere to the rationale of Desist, see Williams v. United States, ante, p. 646. It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should have judged this case by the pre-Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White's rights to be free from unreasonable searches and seizures. The judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE BLACK, while adhering to his views expressed in Linkletter v. Walker, 381 U.S. 618, 640 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364 (1967). Footnotes [Footnote 1 White argues that Jackson, though admittedly "cognizant" of the presence of transmitting devices on his person, did not voluntarily consent thereto. Because the court below did not reach the issue of Jackson's consent, we decline to do so. Similarly, we do not consider White's claim that the Government's actions violated state law. [Footnote 2 A panel of three judges on March 18, 1968, reversed the conviction, one judge dissenting. A rehearing en banc was granted, and on January 7, 1969, the full court followed the panel's decision, three judges dissenting. 405 F.2d 838. [Footnote 3 It follows from our opinion that we reject respondent's contentions that Lopez should be overruled. [Footnote 4 Other courts of appeals have considered On Lee viable despite Katz. Dancy v. United States, 390 F.2d 370 (CA5 1968); Long v. United States, 387 F.2d 377 (CA5 1967); Koran v. United States, [401 U.S. 745, 751] 408 F.2d 1321 (CA5 1969). See also United States v. Kaufer, 406 F.2d 550 (CA2), aff'd per curiam, 394 U.S. 458 (1969); United States v. Jackson, 390 F.2d 317 (CA2 1968); Doty v. United States, 416 F.2d 887 (CA10 1968), id., at 893 (rehearing 1969). [401 U.S. 745, 755] MR. JUSTICE BRENNAN, concurring in the result. I agree that Desist v. United States, 394 U.S. 244 (1969), requires reversal of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers DOUGLAS, HARLAN, and WHITE also debate the question whether On Lee v. United States, 343 U.S. 747 (1952), may any longer be regarded as sound law. My Brother WHITE argues that On Lee is still sound law. My Brothers DOUGLAS and HARLAN argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agree with my Brothers DOUGLAS and HARLAN. But I go further. It is my view that the reasoning of both my Brothers DOUGLAS and HARLAN compels the conclusion that Lopez v. United States, 373 U.S. 427 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez. For I adhere to the dissent in Lopez, 373 U.S., at 446 -471, in which, to quote my Brother HARLAN, post, at 778 n. 12, "the doctrinal basis of our subsequent Fourteenth Amendment decisions may be said to have had its genesis." Katz v. United States, 389 U.S. 347 (1967), adopted that "doctrinal basis" and thus, it seems to me, agreed with the argument in the Lopez dissent that "subsequent decisions and subsequent experience have sapped whatever vitality [On Lee] may once have had; that it should now be regarded as overruled" and that the situation in Lopez "is rationally indistinguishable." 373 U.S., at 447 . The reasons in support of those conclusions are set forth fully in the Lopez [401 U.S. 745, 756] dissent and need not be repeated here. It suffices to say that for those reasons I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations. MR. JUSTICE DOUGLAS, dissenting. I The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as "eavesdropping," we now call "electronic surveillance"; but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held "reasonable" within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of "commerce" would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on. That is why a "strict construction" of the Fourth Amendment is necessary if every man's liberty and privacy are to be constitutionally honored. When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of "fifth column" activities and sabotage and limited it "insofar as possible to aliens," he said that "under ordinary and normal circumstances [401 U.S. 745, 757] wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights." See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, 321 F. Supp. 424, 429: "[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts." Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. Any doubters should read Arthur R. Miller's The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe "human monitoring" which he calls the "ultimate step in mechanical snooping" - a device for spotting unorthodox or aberrational behavior across a wide spectrum. "Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion." Id., at 46. When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from [401 U.S. 745, 758] reality as the well-known Baron Parke was remote from the social problems of his day. See Chapman, "Big Brother" in the Justice Department, The Progressive, April 1971, p. 27. II We held in Berger v. New York, 388 U.S. 41 , that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe "the place to be searched, and the persons or things to be seized," and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed. In Katz v. United States, 389 U.S. 347 , we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. 1 MR. JUSTICE STEWART, speaking for the Court, said: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Id., at 359. As a result of Berger and of Katz, both wiretapping and electronic surveillance through a "bug" or other device are now covered by the Fourth Amendment. There were prior decisions representing an opposed view. In On Lee v. United States, 343 U.S. 747 , an [401 U.S. 745, 759] undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id., at 751-754. Lopez v. United States, 373 U.S. 427 , was also pre-Berger and pre-Katz. The government agent there involved carried a pocket wire recorder which the Court said "was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment." Id., at 439. MR. JUSTICE BRENNAN, dissenting, stated the philosophy of Katz soon to be adopted: "[T]here is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . . ". . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free [401 U.S. 745, 760] society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny." 373 U.S., at 465 -466. It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision 2 under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state. These were wholly pre-arranged episodes of surveillance. The first was in the informant's home to which respondent had been invited. The second was also in the informer's home, the next day. The third was four days later at the home of the respondent. The fourth was in the informer's car two days later. Twelve days after that a meeting in the informer's home was intruded upon. The sixth occurred at a street rendezvous. The seventh was in the informer's home and the eighth in a restaurant owned by respondent's mother-in-law. So far as time is concerned there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals but to protect everyone's privacy. On Lee and Lopez are of a vintage opposed to Berger and Katz. However they may be explained, they are [401 U.S. 745, 761] products of the old common-law notions of trespass. Katz, on the other hand, emphasized that with few exceptions "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . . ." 389 U.S., at 357 . Camara v. Municipal Court, 387 U.S. 523 , put administrative searches under the Fourth Amendment. We held that administrative actions, like other searches, implicated officials in an invasion of privacy and that the Fourth Amendment was meant to guard against the arbitrariness of any such invasion. We said: "We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty." Id., at 533. In Chimel v. California, 395 U.S. 752 , in considering the constitutionality of a search incident to an arrest we held that, while the area in the immediate reach of an arrestee is "reasonable" though made without a warrant, a search beyond that zone may generally be made "only under the authority of a search warrant." Id., at 763. And in two "stop and frisk" cases, Terry v. Ohio, 392 U.S. 1 , and Davis v. Mississippi, 394 U.S. 721 , we held that any restraint of the person, however brief, was subject to judicial inquiry on "reasonableness" ( 392 U.S., at 19 ) and that "the Fourth Amendment governs all intrusions by agents of the public upon personal security . . . ." Id., at 18 n. 15. We have moved far away from the rationale of On Lee and Lopez and only a retrogressive step of large dimensions would bring us back to it. The threads of thought running through our recent decisions are that these extensive intrusions into privacy [401 U.S. 745, 762] made by electronic surveillance make self-restraint by law enforcement officials an inadequate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society. 3 Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse - a First Amendment value - may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance. 4 [401 U.S. 745, 763] Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth. The philosophy of the value of privacy reflected in the Fourth Amendment's ban on "unreasonable searches and seizures" has been forcefully stated by a former Attorney General of the United States: "Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don't think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homogenized already. "Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. In terms of present values, that meaning cannot be good. [401 U.S. 745, 764] "Invasions of privacy demean the individual. Can a society be better than the people composing it? When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society." R. Clark, Crime in America 287 (1970). Now that the discredited decisions in On Lee and Lopez are resuscitated and revived, must everyone live in fear that every word he speaks may be transmitted or recorded 5 and later repeated to the entire world? I can [401 U.S. 745, 765] imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here. 6 [401 U.S. 745, 766] III The decision not to make Katz retroactive to any electronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz), is not, in my view, a tenable one for the reasons stated by MR. JUSTICE HARLAN and me in our dissents in Desist v. United States, 394 U.S. 244, 255 , 256. APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING THE WHITE HOUSE WASHINGTON May 21, 1940 CONFIDENTIAL MEMORANDUM FOR THE ATTORNEY GENERAL I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights. However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation. It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage. [401 U.S. 745, 767] It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed. You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens. [SEAL] /s/ F. D. R. APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING ADMINISTRATIVELY CONFIDENTIAL THE WHITE HOUSE WASHINGTON June 30, 1965 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at [401 U.S. 745, 768] stake. To avoid any misunderstanding on this subject in the Federal Government. I am establishing the following basic guidelines to be followed by all government agencies: (1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security). (2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General. (3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order. Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency's practices are fully in accord with the law and with a decent regard for the rights of others. Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them. /s/ Lyndon B. Johnson [Footnote 1 See Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col. L. Rev. 189; Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133; Note, Police Undercover Agents: New Threat to First Amendment Freedoms, 37 Geo. Wash. L. Rev. 634; Comment, Electronic Surveillance: The New Standards, 35 Brooklyn L. Rev. 49. The relaxing of constitutional requirements by the Executive Branch is apparent from the Appendices to this dissent. [Footnote 2 Osborn v. United States, 385 U.S. 323 , was held to be in that tradition, as the federal district judges, prior to the use of the recording device by the agent and with full knowledge of the alleged law violation involved, "authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth" of the charge. Id., at 330. [Footnote 3 The tyranny of surveillance that is not supervised in the Fourth Amendment manner is told by Judge Gesell in United States v. Jones, 292 F. Supp. 1001, 1008-1009, where the competition between agencies and the uncontrolled activities of subordinates ended up with Government itself playing an ignoble role. Cf. American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance 4.1, 5.2 (Approved Draft 1971). [Footnote 4 Congressman Mikva of Illinois, in speaking of the spread of military surveillance of civilians - another facet of the problem in the instant case - recently said: "At one pont they referred to `infiltrating public meetings' at which Senator Stevenson and I spoke, and I wondered how you `infiltrate' a public meeting. Perhaps they wanted to compile evidence to be used in some future military court - evidence that I was disloyal to the military establishment because I suggested that we cut manpower by ten per cent last year, or because I voted against their appropriations in the two years I've been here. . . . . . "When they start investigating political figures, there is no place you can draw the line and maintain any kind of civilian control. . . . . . . . . "We have become a fearful people. There was a time when we feared only our enemies abroad. Now we seem to be as fearful of our enemies at home, and depending on whom you talk to, those enemies can include people under thirty, people with foreign names, people of different races, people in the big cities. We have become a suspicious nation, as afraid of being destroyed from within as from without. "Unfortunately, the manifestations of that kind of fear and suspicion are police-state measures." A Nation in Fear, The Progressive, Feb. 1971, pp. 18, 19-20. [Footnote 5 Senator Edward Long, who intensively investigated wiretapping and "bugging" said: "You would be amazed at the different ways you can now be `bugged.' There is today a transmitter the size of an aspirin tablet which can help transmit conversations in your room to a listening post up to 10 miles away. "An expert can devise a bug to fit into almost any piece of furniture in your room. And even if you find the bug, you will have no evidence of who put it there. A United States Senator was bugged by a transmitter secretly placed into a lamp which his wife was having fixed at the shop. When experts searched for the transmitter, it was gone. "A leading electronics expert told my Subcommittee last year that wiretapping and bugging in industrial espionage triples every year. He said that new bugging devices are so small and cleverly concealed that it takes search equipment costing over one hundred thousand dollars and an expert with 10 years of field experience to discover them. Ten years ago, the same search for bugs could have been done with equipment costing only one-fourth as much. "In California we found a businessman who had been so frightened by electronic eavesdropping devices which had been concealed in his [401 U.S. 745, 765] office, that he is now spending thousands of dollars having his office searched each day, taking his phone apart every morning, and stationing a special guard outside his office 24 hours a day. "He is one of a growing number of men in industry who live in constant fear that what they say is being listened to by their competitor." 19 Adm. L. Rev. 442, 444. And see E. Long, The Intruders (1966). [Footnote 6 "A technological breakthrough in techniques of physical surveillance now makes it possible for government agents and private persons to penetrate the privacy of homes, offices, and vehicles; to survey individuals moving about in public places; and to monitor the basic channels of communication by telephone, telegraph, radio, television, and data line. Most of the `hardware' for this physical surveillance is cheap, readily available to the general public, relatively easy to install, and not presently illegal to own. As of the 1960's, the new surveillance technology is being used widely by government agencies of all types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and individuals in every section of the United States. Increasingly, permanent surveillance devices have been installed in facilities used by employees or the public. While there are defenses against `outside' surveillance, these are so costly and complex and demand such constant vigilance that their use is feasible only where official or private matters of the highest security are to be protected. Finally, the scientific prospects for the next decade indicate a continuing increase in the range and versatility of the listening and watching devices, as well as the possibility of computer processing of recordings to identify automatically the speakers or topics under surveillance. These advances will come just at the time when personal contacts, business affairs, and government operations are being channeled more and more into electronic systems such as data-phone lines and computer communications." A. Westin, Privacy and Freedom 365-366 (1967). MR. JUSTICE HARLAN, dissenting. The uncontested facts of this case squarely challenge the continuing viability of On Lee v. United States, 343 U.S. 747 (1952). As the plurality opinion of MR. JUSTICE [401 U.S. 745, 769] WHITE itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official behavior of this sort in spite of the subsequent erosion of its doctrinal foundations. With all respect, my agreement with the plurality opinion ends at that point. I think that a perception of the scope and role of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full comprehension of the precise issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States, 389 U.S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States, 394 U.S. 244, 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee. I Before turning to matters of precedent and policy, several preliminary observations should be made. We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by federal law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and cooperation of a participant in the conversation, 1 [401 U.S. 745, 770] and where the substance of the matter electronically overheard 2 is related in a federal criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utilization of this technique. Professor Westin has documented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immediate relevance is his observation that "`participant recording,' in which one participant in a conversation or meeting, either a police officer or a co-operating party, wears a concealed device that records the conversation or broadcasts it to others nearby . . . is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials . . . and similar crimes." 3 [401 U.S. 745, 771] Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They have provoked sharp differences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies. 4 [401 U.S. 745, 772] Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, see Mapp v. Ohio, 367 U.S. 643 (1961), and Ker v. California, 374 U.S. 23 (1963), and see also Berger v. New York, 388 U.S. 41 (1967); Baldwin v. New York, 399 U.S. 66, 117 (1970) (dissenting opinion); California v. Green, 399 U.S. 149, 172 (1970) (concurring opinion). I also think that in the adjudication of federal cases, the Court should leave ample room for congressional developments. [401 U.S. 745, 773] II On these premises I move to the problem of third-party "bugging." To begin by tracing carefully the evolution of Fourth Amendment doctrine in post-On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion's retroactivity analysis. A On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illegal narcotics traffic. Poy was equipped with a "minifon" transmitting device which enabled outside Government agents to monitor Poy's conversations with Lee. In the privacy of his laundry, Lee made damaging admissions to Poy which were overheard by the agents and later related at trial. Poy did not testify. Mr. Justice Jackson, writing for five Justices, held the testimony admissible. Without reaching the question of whether a conversation could be the subject of a "seizure" for Fourth Amendment purposes, as yet an unanswered if not completely open question, 5 the [401 U.S. 745, 774] Court concluded that in the absence of a trespass, 6 no constitutional violation had occurred. 7 The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect On Lee rested on common-law notions and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and within 10 years the Court expressly disavowed an approach to Fourth Amendment questions that looked to common-law distinctions. See, e. g., Jones v. United States, 362 U.S. 257 (1960); Silverman v. United States, 365 U.S. 505 (1961); Lanza v. New York, 370 U.S. 139 (1962). It is, of course, true that the opinion in On Lee drew some support from a brief additional assertion that "eavesdropping on a conversation, with the connivance of one of the parties" raises no Fourth Amendment problem. 343 U.S., at 754 . But surely it is a misreading of that opinion to view this unelaborated assertion as a wholly independent ground for decision. At the very least, this [401 U.S. 745, 775] rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I discuss below. Indeed, the plurality opinion in the present case, in greatly elaborating the point, tacitly recognizes the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U.S., at 363 n. (WHITE, J., concurring). By 1963, when we decided Lopez v. United States, 373 U.S. 427 , four members of the Court were prepared to pronounce On Lee and Olmstead v. United States, 277 U.S. 438 (1928), dead. 8 The pyre, they reasoned, had been stoked by decisions like Wong Sun v. United States, 371 U.S. 471 (1963), which, on the one hand, expressly brought verbal communication within the sweep of the Fourth Amendment, 9 and, on the other, reinforced [401 U.S. 745, 776] our Silverman and Jones decisions which "refused to crowd the Fourth Amendment into the mold of local property law," 373 U.S., at 460 (BRENNAN, J., dissenting). Although the Court's decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to have nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, despite an allusion to the absence of "an unlawful . . . invasion of a constitutionally protected area," 373 U.S., at 438 -439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a "risk" not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no "electronic eavesdropping on a private conversation which government agents could not otherwise have overheard." 373 U.S., at 440 . 10 As I point out in Part III [401 U.S. 745, 777] of this opinion, it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in. While Lopez cited On Lee without disavowal of its holding, 373 U.S., at 438 , it is entirely accurate to say that we did not there reaffirm it. 11 No decision since Lopez gives a breath of life to the reasoning that led to the On Lee and Olmstead results, and it required little clairvoyance to predict the demise of the basic rationale of On Lee and Olmstead foreshadowed by our subsequent opinions in Osborn v. United States, 385 U.S. 323 (1966), and Berger v. New York, 388 U.S. 41 (1967). Only three years after Lopez, MR. JUSTICE STEWART writing for the Court in Osborn v. United States, supra, expressly abjured reliance on Lopez and, instead, approved identical conduct based on the "circumstances under which the tape recording was obtained in [that] case," facts that involved "using [a recorder] under the most precise and discriminate circumstances, circumstances which fully met the `requirement of particularity' [401 U.S. 745, 778] which the dissenting opinion in Lopez found necessary." Osborn v. United States, 385 U.S., at 327 , 329. 12 Since Osborn our decisions have shown no tolerance for the old dividing lines resting, as they did, on fiction and common-law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the "mere evidence rule" we announced that "the principal object of the Fourth Amendment is the protection of privacy rather than property," and once again noted the trend to discard "fictional and procedural barriers rested on property concepts." Warden v. Hayden, 387 U.S. 294, 304 (1967). That same Term the Court demonstrated the new flexibility in Fourth Amendment doctrine when it held that the warrant protections would be applied to administrative searches. Camara v. Municipal Court, 387 U.S. 523 (1967). Certainly if Osborn, Warden, and Camara did not plainly draw into question the vigor of earlier precedents, Berger v. New York, 388 U.S. 41 , did, and expunged any remnants of former doctrine which might have been [401 U.S. 745, 779] thought to have survived Osborn and Warden. 13 There, the Court, following a path opened by Mr. Justice Brandeis' dissent in Olmstead, and smoothed in Osborn and Camara, expressed concern about scientific developments that have put within the reach of the Government the private communications of "anyone in almost any given situation," 388 U.S., at 47 ; it left no doubt that, as a general principle, electronic eavesdropping was an invasion of privacy and that the Fourth Amendment prohibited unsupervised "bugging." Disturbed by the extent of intrusion which "[b]y its very nature . . . is broad in scope," and nothing that "[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices," id., at 63, the Court brought to life the principle of reasonableness adumbrated in Osborn. Mr. Justice Clark, writing for the majority, reiterated the new approach: "[T]he `indiscriminate use of such [bugging] devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,' and imposes `a heavier responsibility on this Court in its supervision of the fairness of procedures . . . .'" 388 U.S., at 56 , quoting from Osborn v. United States, 385 U.S. 323, 329 n. 7. Nor did the Court waver in resolve in the face of respondent's dire prediction that "neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements." 14 It [401 U.S. 745, 780] was said that "[i]f that be true then the `fruits' of eavesdropping devices are barred under the Amendment." 388 U.S., at 63 . 15 If Berger did not flatly sound a dirge for Olmstead, it articulated principles that led MR. JUSTICE DOUGLAS, by way of concurrence, to comment on its quiet burial. 388 U.S., at 64 . While it was left to Katz to perform the last rites, that decision inevitably followed from Osborn and Berger. The Berger majority's affirmative citation of On Lee for the principle that "under specific conditions and circumstances" eavesdropping may be lawful, 388 U.S., at 63 , serves only to underscore the emerging operative assumptions: that the particular circumstances of each case will be scrutinized to the end of ascertaining the reasonableness of the search, and that will depend in large measure on whether prior judicial authorization, based on a particularized showing, has been obtained. Katz v. United States, supra. Viewed in perspective, then, Katz added no new dimension to the law. At most it was a formal dispatch of Olmstead and the notion that such problems may usefully be resolved in the light of trespass doctrine, and, of course, it freed from speculation what was already evident, that On Lee was completely open to question. B But the decisions of this Court since On Lee do more than demonstrate that the doctrine of that case is wholly open for reconsideration, and has been since well before Katz was decided. They also establish sound general principles for application of the Fourth Amendment that were either dimly perceived or not fully worked out [401 U.S. 745, 781] at the time of On Lee. I have already traced some of these principles in Part II-A, supra: that verbal communication is protected by the Fourth Amendment, that the reasonableness of a search does not depend on the presence or absence of a trespass, and that the Fourth Amendment is principally concerned with protecting interests of privacy, rather than property rights. Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. Particularly significant in this regard are Camara v. Municipal Court, 387 U.S. 523 (1967); Terry v. Ohio, 392 U.S. 1 (1968), and Chimel v. California, 395 U.S. 752 (1969). In Camara the Court brought under the Fourth Amendment administrative searches that had once been thought to be without its sweep. In doing so the opinion emphasized the desirability of establishing in advance those circumstances that justified the intrusion into a home and submitting them for review to an independent assessor, 16 principles that this Court has always deemed to be at the core of Fourth Amendment protections. 17 [401 U.S. 745, 782] In bringing such searches within the ambit of the warrant requirement, Camara rejected the notion that the "less hostile" nature of the search relegated this invasion of privacy to the "periphery" of Fourth Amendment concerns. 387 U.S., at 530 . The central consideration was, the Court concluded, that these administrative actions, no less than the typical search, involved government officials in an invasion of privacy, and that it was against the possible arbitrariness of invasion that the Fourth Amendment with its warrant machinery was meant to guard. Berger and Katz built, as noted earlier, on Osborn v. United States, supra, and Camara, and gave further expression to the principle. 18 It was not enough that government agents acted with restraint, for reasonableness must in the first instance be judged in a detached realm. 19 [401 U.S. 745, 783] The scope and meaning of the rule have emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U.S. 752 (1969), we reiterated the importance of the prior independent determination of a neutral magistrate and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U.S. 145 (1947), and United States v. Rabinowitz, 339 U.S. 56 (1950). We were concerned by the breadth of searches occasioned by the Rabinowitz rule which frequently proved to be an invitation to a hunting expedition. Searches incident to arrest, we held, must be confined to a locus no greater than necessary to prevent injury to the arresting officer or destruction of evidence. 395 U.S., at 763 , 767; cf. Terry v. Ohio, 392 U.S. 1 (1968). To complete the tapestry, the strands of doctrine reflected in the search cases must be interwoven with the Court's other contemporary holdings. Most significant [401 U.S. 745, 784] are Terry v. Ohio, supra, and Davis v. Mississippi, 394 U.S. 721 (1969), which were also harbingers of the new thrust in Fourth Amendment doctrine. There the Court rejected the contention that only an arrest triggered the "incident-to-arrest" exception to the warrant requirement of the Fourth Amendment, and held that any restraint of the person, however brief and however labeled, was subject to a reasonableness examination. 392 U.S., at 19 . The controlling principle is "to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness." 392 U.S., at 18 n. 15. See also Davis v. Mississippi, 394 U.S., at 727 . 20 III A That the foundations of On Lee have been destroyed does not, of course, mean that its result can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. United States, 385 U.S. 206 (1966), and Hoffa v. United States, 385 U.S. 293 (1966), to resist the undercurrents of more recent cases emphasizing the warrant procedure as a safeguard to privacy. But this category provides insufficient support. In each of these cases the risk the general populace faced was different from that surfaced by the instant case. No surreptitious third ear was present, and in each opinion that fact was carefully noted. [401 U.S. 745, 785] In Lewis, a federal agent posing as a potential purchaser of narcotics gained access to petitioner's home and there consummated an illegal sale, the fruits of which were admitted at trial along with the testimony of the agent. Chief Justice Warren, writing for the majority, expressly distinguished the third-party overhearing involved, by way of example, in a case like Silverman v. United States, supra, noting that "there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house." 385 U.S., at 212 . Similarly in Hoffa, MR. JUSTICE STEWART took care to mention that "surreptitious" monitoring was not there before the Court, and so too in Lopez, supra. The plurality opinion seeks to erase the crucial distinction between the facts before us and these holdings by the following reasoning: if A can relay verbally what is revealed to him by B (as in Lewis and Hoffa), or record and later divulge it (as in Lopez), what difference does it make if A conspires with another to betray B by contemporaneously transmitting to the other all that is said? The contention is, in essence, an argument that the distinction between third-party monitoring and other undercover techniques is one of form and not substance. The force of the contention depends on the evaluation of two separable but intertwined assumptions: first, that there is no greater invasion of privacy in the third-party situation, and, second, that uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system. 21 [401 U.S. 745, 786] The first of these assumptions takes as a point of departure the so-called "risk analysis" approach of Lewis, and Lopez, and to a lesser extent On Lee, or the expectations approach of Katz. See discussion in Part II, supra. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations and can, ultimately, lead to the substitution of words for analysis. 22 The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present. Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement. This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement. For those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officials is required and at the least warrants [401 U.S. 745, 787] should be necessary. Cf. Terry v. Ohio, supra; Davis v. Mississippi, supra. B The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting. Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity - reflected in frivolous, impetuous, sacrilegious, and defiant discourse - that liberates daily life. 23 Much off-hand exchange is easily forgotten [401 U.S. 745, 788] and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. 24 All these values are sacrificed by [401 U.S. 745, 789] a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant. It matters little that consensual transmittals are less obnoxious than wholly clandestine eavesdrops. This was put forward as justification for the conduct in Boyd v. United States, 116 U.S. 616 (1886), where the Government relied on mitigating aspects of the conduct in question. The Court, speaking through Mr. Justice Bradley, declined to countenance literalism: "Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure." 116 U.S., at 635. Finally, it is too easy to forget - and, hence, too often forgotten - that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that produces the results the plurality opinion ascribes to the On Lee rule. Abolition of On Lee would [401 U.S. 745, 790] not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society. The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society. IV I reach these conclusions notwithstanding seemingly contrary views espoused by both Congress and an American Bar Association study group. 25 Both the ABA [401 U.S. 745, 791] study and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. 2510 et seq. (1964 ed., Supp. V), appear to reflect little more than this Court's prior decisions. Indeed, the comprehensive provisions of Title III are evidence of the extent of congressional concern with the impact of electronic surveillance on the right to privacy. This concern is further manifested in the introductory section of the Senate Committee Report. 26 Although 2511 (2) (c) exempts consensual and participant monitoring by law enforcement agents from the general prohibitions against surveillance without prior judicial authorization and makes the fruits admissible in court, see 2515, congressional malaise with such conduct is evidenced by the contrastingly limited endorsement of consensual surveillance carried out by private individuals. 27 While individual Congressmen expressed concern about and criticized the provisions for unsupervised consensual electronic surveillance contained in 2511, 28 the Senate Committee Report comment, to the effect that "[i]t [ 2511 (2) (c)] largely reflects existing law," S. Rep. No. 1097, 90th Cong., 2d Sess., 93-94 (1968), followed by citations to On Lee and Lopez, 29 strongly suggests that the provisions represent not intractable approval of these practices, but rather an intention to adopt these holdings and to leave to the courts the task of determining their viability in [401 U.S. 745, 792] light of later holdings such as Berger, Osborn, and Katz. 30 I find in neither the ABA study nor Title III any justification for ignoring the identifiable difference - albeit an elusive one in the present state of knowledge - between the impact on privacy of single-party informer bugging and third-party bugging, which in my opinion justifies drawing the constitutional line at this juncture between the two as regards the necessity for obtaining a warrant. Recognition of this difference is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolerates official invasion of privacy simply in circumscribed situations. The Fourth Amendment protects these traditions, and places limitations on the means and circumstances by which the Government may collect information about its citizens by intruding into their personal lives. The [401 U.S. 745, 793] spirit of the principle is captured by the oft-quoted language of Boyd v. United States, 116 U.S., at 630 : "The principles laid down in this opinion [speaking of Entick v. Carrington, 19 How. St. Tr. 1029 (1765)] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security . . . ." What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop. V Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing "of this case based on its understanding of the principles announced in the Katz case," ante, at 754, because Desist v. United States, 394 U.S. 244 (1969), held that Katz governed only governmental conduct occurring after the decision in Katz. It is difficult to know where to begin to analyze such a truly extraordinary assertion respecting the operation of the judicial process. Because this case is here on direct review, even were the issues squarely controlled by Katz, I would unhesitatingly apply here the rule there adopted, for the reasons first expressed in my dissent in Desist, 394 U.S., at 256 , and elaborated in my separate opinion in Mackey [401 U.S. 745, 794] v. United States (and companion cases), ante, p. 675. I see no purpose in repeating at this point the analysis I set forth in those opinions. Suffice it to say that, in Desist, I went to some length to point out, by discussing a hypothetical proposition, that the failure to apply any new decision by this Court to cases which had not yet run their course on direct review was inconsistent with the case-by-case approach to constitutional decision and with the proper relationship of this Court to the lower federal courts. In particular, I noted that the logic of Desist suggested that it would constitute error for a lower federal court to adopt a new constitutional rule which this Court subsequently approved. 394 U.S., at 259 . Today's opinion stands as eloquent evidence of that defect. Indeed, I find this decision even more troubling than Desist. For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion's own analysis of the instant case, it is clear that Katz has no direct relevance to the present viability of On Lee. "Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police." Ante, at 749. As I have already shown, one need not cite Katz to demonstrate the inability of On Lee to survive recent developments without at least substantial reformulation. To hold, then, that a mere citation of Katz, or drawing upon the philosophical underpinnings of that case in order to employ a general constitutional approach in tune with that of the decisions of this Court, conflicts with the holding of Desist is to let this obsession with prospectivity run riot. [401 U.S. 745, 795] Apparently Desist is now to be understood as holding that all lower federal courts are disabled from adjudicating on their merits all allegations of Fourth Amendment error not squarely supported by a prior decision of this Court. If so, one wonders what purpose is served by providing intermediate appellate review of constitutional issues in the federal criminal process. We must not forget that this Court is not the only tribunal in the entire federal system charged with a responsibility for the nurture and development of the Fourth Amendment. It is one thing to disable all federal courts, including this Court, from applying the settled law of the land to cases and controversies before them - as Desist does with Katz - and at least another giant step backward to preclude lower courts from resolving wholly disparate controversies in the light of constitutional principles. Can it be seriously contended, as the plurality opinion necessarily implies, that the Court of Appeals should not be reversed today on these alternative grounds had it simply omitted to discuss Katz? To force lower federal courts to adjudicate controversies either mechanistically or disingenuously is for me indefensible. Yet this is precisely what the plurality opinion does with its assertion that it is error for lower courts to "dispose" of a case based on their "understanding of the principles announced" in Katz for the next year or so. I would hold that On Lee is no longer good law and affirm the judgment below. [Footnote 1 I agree with the plurality opinion, ante, at 747 n. 1, that the issue of the informer's consent to utilization of this technique is not properly before us. Whether persons can, consistent with constitutional prohibitions, be tricked or coerced into transmitting their conversations, with or without prior judicial approval, and, if not, whether [401 U.S. 745, 770] other parties to the conversation would have standing to object to the admission against them of evidence so obtained, cf. Alderman v. United States, 394 U.S. 165 (1969), are questions upon which I express no opinion. [Footnote 2 In the case at hand agents were also surreptitiously placed in respondent's home at various times. No testimony by these agents was offered at trial. [Footnote 3 A. Westin, Privacy and Freedom 131 (1967). This investigative technique is also used to unearth "political" crimes. "Recordings of the private and public meetings of suspect groups [have] been growing. Police in Miami, Florida, used a hidden transmitter on a police agent to record statements made at meetings of a right-wing extremist group suspected of planning acts of terrorism. In 1964 a police undercover agent obtained recordings of incendiary statements by the leader of a Communist splinter movement in Harlem, at private meetings and at a public rally, which served as the basis for his conviction for attempting to overthrow the state government." Ibid. [Footnote 4 Prior to Osborn v. United States, 385 U.S. 323 (1966), and Katz the issue before us, if raised, was usually dismissed in a routine fashion with a citation to On Lee, buttressed by a citation to Lopez v. United States, 373 U.S. 427 (1963), with no attempt to distinguish the two cases despite the narrow rationale of the latter. See, e. g., United States v. Pasquinzo, 334 F.2d 74, 75 (CA6 1964); Maddox v. United States, 337 F.2d 234 (CA5 1964); but cf. United States v. Stone, 232 F. Supp. 396 (ND Tex. 1964). The few authorities post-dating Katz have divided on the continued viability of the On Lee result, compare, e. g., United States v. Jones, 292 F. Supp. 1001 (DC 1968), and cases cited therein, 292 F. Supp., at 1008, with Dancy v. United States, 390 F.2d 370 (CA5 1968) (Judge Fahy dissenting); United States v. Kaufer, 406 F.2d 550 (CA2 1969); People v. Fiedler, 30 App. Div. 2d 476, 294 N. Y. S. 2d 368 (1968) (Justices Goldman and Bastow dissenting), aff'd without opinion, 24 N. Y. 2d 960, 250 N. E. 2d 75 (1969). Perhaps the most comprehensive treatments, examining both the case law and policy considerations underlying the precise issue - electronic surveillance with the consent of one of the parties - are by Professor Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col. L. Rev. 189 (1968), and Professor Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133. For an interesting analysis of the impact of nonconsensual bugging on privacy and the role of prior judicial authorization see Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. Pa. L. Rev. 169 (1969). In addition, see American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance 4.1 (Approved Draft 1971); J. Landynski, Search and Seizure and the Supreme Court [401 U.S. 745, 772] 198-244 (1966); Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich. L. Rev. 455, 495-496 (1969); S. Dash, R. Schwartz, & R. Knowlton, The Eavesdroppers 421-441 (1959); Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L. Q. 975 (1967); King, Electronic Surveillance and Constitutional Rights: Some Recent Developments and Observations, 33 Geo. Wash. L. Rev. 240 (1964); Note, Wiretapping and Electronic Surveillance - Title III of the Crime Control Act of 1968, 23 Rutgers L. Rev. 319 (1969); Blakey & Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame Law. 657 (1968); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor's View, 44 Minn. L. Rev. 891 (1960); Note, From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection, 43 N. Y. U. L. Rev. 968, 973-974 (1968); Scoular, Wiretapping and Eavesdropping Constitutional Development from Olmstead to Katz, 12 St. Louis L. J. 513 (1968); 20 Syracuse L. Rev. 791 (1969); 14 Vill. L. Rev. 758 (1969). [Footnote 5 See Goldman v. United States, 316 U.S. 129 (1942). Silverman v. United States, 365 U.S. 505 (1961), made explicit that which was still unclear after Goldman: words overheard by trespass are subject to Fourth Amendment protection. See also Wong Sun v. United States, 371 U.S. 471 (1963). [Footnote 6 Mr. Justice Jackson rejected petitioner's contention that Poy's deception vitiated Lee's consent to his entry on the premises. 343 U.S., at 752 . [Footnote 7 343 U.S., at 751 -752: "The conduct of Chin Poy and agent Lee did not amount to an unlawful search and seizure such as is proscribed by the Fourth Amendment. In Goldman v. United States, 316 U.S. 129 . . ., the agents had earlier committed a trespass in order to install a listening device within the room itself. Since the device failed to work, the Court expressly reserved decision as to the effect on the search-and-seizure question of a trespass in that situation. Petitioner in the instant case has seized upon that dictum, apparently on the assumption that the presence of a radio set would automatically bring him within the reservation if he can show a trespass. "But petitioner cannot raise the undecided question, for here no trespass was committed. Chin Poy entered a place of business with the consent, if not by the implied invitation, of the petitioner." [Footnote 8 Both Chief Justice Warren, in concurrence, 373 U.S., at 441 , and MR. JUSTICE BRENNAN, who wrote a dissenting opinion in which he was joined by JUSTICES DOUGLAS and Goldberg, 373 U.S., at 446 , were of the view that Olmstead and On Lee should be overruled. Cf. United States v. Stone, 232 F. Supp. 396 (ND Tex. 1964). [Footnote 9 While Silverman v. United States, 365 U.S. 505 , would seem to have eliminated any lingering uncertainty on this score, cf. Goldman v. United States, 316 U.S. 129 , Wong Sun articulated the unspoken premise of Silverman. "The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505 , that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of `papers and effects.' Similarly, testimony as to matters observed during [401 U.S. 745, 776] an unlawful invasion has been excluded in order to enforce the basic constitutional policies. [Citation omitted.] Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." 371 U.S., at 485 . While I joined Mr. Justice Clark's dissenting opinion, 371 U.S., at 498 , our differences with the majority involved only their analysis of probable cause. [Footnote 10 "Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the [401 U.S. 745, 777] agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." 373 U.S., at 439 . [Footnote 11 The Chief Justice and dissenters, concerned with the possibility that "the majority opinion may be interpreted as reaffirming sub silentio the result in On Lee v. United States," expressly repudiated it. 373 U.S., at 441 (first emphasis added). [Footnote 12 In a footnote the Court in Osborn outlined a new approach, foreshadowed by MR. JUSTICE BRENNAN'S Lopez dissent, in which the doctrinal basis of our subsequent Fourth Amendment decisions may be said to have had its genesis: "The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that `the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment,' [citations omitted] could be made a precondition of lawful electronic surveillance . . . ." Osborn v. United States, 385 U.S. 323, 330 n. 9, quoting MR. JUSTICE BRENNAN'S dissenting opinion in Lopez v. United States, 373 U.S., at 464 . Judge Gesell in reviewing the precedents has recently concluded that it was Katz, read in conjunction with Osborn, that buried On Lee. United States v. Jones, 292 F. Supp. 1001, 1008 (DC 1968). [Footnote 13 See Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich. L. Rev. 455, 458-459 (1969). [Footnote 14 My principal disagreement with the Court in Berger involved the wisdom of reviewing the New York statute on its face rather than focusing on the facts and circumstances of the particular case, and the exposition of the appropriate application of warrant principles to eavesdropping situations. 388 U.S., at 96 -106. [Footnote 15 Cf. Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. Pa. L. Rev. 169 (1969). [Footnote 16 See Beck v. Ohio, 379 U.S. 89, 96 (1964), where the Court emphasized the importance of "an objective predetermination" uncomplicated by a presentation not "subtly influenced by the familiar shortcomings of hindsight judgment." [Footnote 17 The classic exposition of the purposes and importance of the warrant requirement is to be found in the opinion of Mr. Justice Jackson in his opinion for the Court in Johnson v. United States, 333 U.S. 10, 13 -14 (1948): "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn [401 U.S. 745, 782] by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . The right of officers to thrust themselves into a home is . . . a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." See also Terry v. Ohio, 392 U.S. 1 (1968); United States v. Ventresca, 380 U.S. 102 (1965); Aguilar v. Texas, 378 U.S. 108 (1964); Wong Sun v. United States, 371 U.S. 471 (1963); Chapman v. United States, 365 U.S. 610 (1961); Jones v. United States, 362 U.S. 257 (1960); Jones v. United States, 357 U.S. 493 (1958); Giordenello v. United States, 357 U.S. 480 (1958); United States v. Jeffers, 342 U.S. 48 (1951); McDonald v. United States, 335 U.S. 451 (1948); Trupiano v. United States 334 U.S. 699 (1948); United States v. Lefkowitz, 285 U.S. 452 (1932); Agnello v. United States, 269 U.S. 20 (1925). [Footnote 18 See Part II-A, supra. See United States v. Jones, 292 F. Supp. 1001 (DC 1968). [Footnote 19 "`Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51 , and that [401 U.S. 745, 783] searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S., at 356 -357. The warrant procedure need not always entail an inquiry into the existence of probable cause in the usual sense. Cf. Camara v. Municipal Court. For example, where an informer is being sent in to investigate a dangerous crime, and there is reason to believe his person would be in danger, monitoring might be justified and a warrant issued even though no probable cause existed to believe the particular meeting would provide evidence of particular criminal activity. Cf. Warden v. Hayden, 387 U.S. 294, 298 (1967); McDonald v. United States, 335 U.S., at 455 -456; Johnson v. United States, 333 U.S., at 14 -15; Ker v. California, 374 U.S. 23 (1963); Trupiano v. United States, 334 U.S. 699 (1948), all taking the view that exceptions to the warrant requirement may be made in narrowly defined special circumstances. [Footnote 20 I do not consider Chambers v. Maroney, 399 U.S. 42 (1970), a retreat from the general proposition established by Katz and Chimel. While I disagreed with the Court, see my separate opinion, 399 U.S., at 55 , moving vehicles have always presented a special Fourth Amendment problem. Compare Carroll v. United States, 267 U.S. 132 (1925), with Agnello v. United States, 269 U.S. 20 (1925). [Footnote 21 Professor Westin has observed: "It is obvious that the political system in each society will be a fundamental force in shaping its balance of privacy, since certain patterns of privacy, disclosure, and surveillance are functional necessities [401 U.S. 745, 786] for particular kinds of political regime. This is shown most vividly by contrasting privacy in the democratic and the totalitarian state." Westin, supra, n. 3, at 23. [Footnote 22 See Kitch, supra, n. 4, at 141-142, 150-152. [Footnote 23 Greenawalt, supra, n. 4; Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L. Q. 975, 983 (1967); Westin, supra, n. 3, at 390. Professor Westin, in projecting the consequences of unsupervised participant monitoring, has observed: "[E]avesdropping with the consent of one party . . . has been the basic charter for private-detective taps and bugs, for `owner' eavesdropping on facilities that are used by members of the public, and for much free-lance police eavesdropping. Allowing eavesdropping with the consent of one party would destroy the statutory [401 U.S. 745, 788] plan of limiting the offenses for which eavesdropping by device can be used and insisting on a court-order process. And as technology enables every man to carry his micro-miniaturized recorder everywhere he goes and allows every room to be monitored surreptitiously by built-in equipment, permitting eavesdropping with the consent of one party would be to sanction a means of reproducing conversation that could choke off much vital social exchange." See also separate views of Senator Hart set forth in S. Rep. No. 1097, 90th Cong., 2d Sess., 175 (1968); Proposed Legislation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States, 7 Bull. No. 2 of the Association of the Bar of the City of New York 1, 3, 22-26 (Aug. 1968). [Footnote 24 From the same standpoint it may also be thought that electronic recording by an informer of a face-to-face conversation with a criminal suspect, as in Lopez, should be differentiated from third-party monitoring, as in On Lee and the case before us, in that the latter assures revelation to the Government by obviating the possibility that the informer may be tempted to renege in his undertaking to pass on to the Government all that he has learned. While the continuing vitality of Lopez is not drawn directly into question by this case, candor compels me to acknowledge that the views expressed in this opinion may impinge upon that part of the reasoning in Lopez which suggested that a suspect has no right to anticipate unreliable testimony. I am now persuaded that such an approach misconceives the basic issue, focusing, as it does, on the interests of a particular individual rather than evaluating the impact of a practice on the sense of security that is the true concern of the Fourth Amendment's protection of privacy. Distinctions do, however, exist between Lopez, where a known Government agent uses a recording device, and this case which involves third-party overhearing. However unlikely that the participant recorder will not play his tapes, the fact of the matter is that in a third-party situation the intrusion is instantaneous. Moreover, differences in the prior relationship between the investigator and the suspect may provide a focus for future distinctions. See Greenawalt, supra, n. 4. [Footnote 25 See ABA Project, supra, n. 4. The commentary states at the outset: "This standard reflects the prevailing law." The drafters apparently take as their starting point the risk analysis approach, relying on cases holding that contents of letters may be revealed where otherwise lawfully obtained. Stroud v. United States, 251 U.S. 15 (1919); Ex parte Jackson, 96 U.S. 727, 737 (1878); see also Blakey & Hancock, A Proposed Electronic Surveillance Control Act, supra, n. 4, at 663, n. 11. The various state provisions are set forth in Greenawalt, supra, n. 4, at 207-211. [Footnote 26 See S. Rep. No. 1097, 90th Cong., 2d Sess., 69 (1968). [Footnote 27 See 2511 (2) (d), which prohibits nongovernmental recording and listening when the "communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act." [Footnote 28 See S. Rep. No. 1097, supra, n. 26, at 175 (remarks of Sen. Hart); 114 Cong. Rec. 11598-11599, 14470-14472. [Footnote 29 S. Rep. No. 1097, supra, n. 26, at 93-94. [Footnote 30 Indeed, the plain thrust of Title III appears to be to accommodate the holdings of Berger and Katz, and provides considerable reassurance to me in adopting the views expressed herein which would doubtless, without more, cast a cloud upon the constitutionality of 2511. Since the Title III question has been neither briefed nor argued, as this case arose prior to its enactment, I would expressly reserve judgment should it prove upon further study that Congress had an affirmative intention to restrict warrant requirements to nonconsensual surveillance. We would then have to face the question, summarily dealt with in another context in Katzenbach v. Morgan, 384 U.S. 641, 651 n. 10 (1966), what deference should be given a congressional determination that certain procedures not plainly violations of due process, should be permitted. See Greenawalt, supra, n. 4, at 232 n. 207. Whether Congress may place restrictions on bugging by local law enforcement not mandated by the Fourteenth Amendment is also an unanswered question. See Spritzer, supra, n. 15, at 177 n. 46. MR. JUSTICE MARSHALL, dissenting. I am convinced that the correct view of the Fourth Amendment in the area of electronic surveillance is one that brings the safeguards of the warrant requirement to bear on the investigatory activity involved in this case. In this regard I agree with the dissents of MR. JUSTICE [401 U.S. 745, 796] DOUGLAS and MR. JUSTICE HARLAN. In short, I believe that On Lee v. United States, 343 U.S. 747 (1952), cannot be considered viable in light of the constitutional principles articulated in Katz v. United States, 389 U.S. 347 (1967), and other cases. And for reasons expressed by Mr. Justice Fortas in dissent in Desist v. United States, 394 U.S. 244, 269 (1969), I do not think we should feel constrained to employ a discarded theory of the Fourth Amendment in evaluating the governmental intrusions challenged here. [401 U.S. 745, 797]

conservative

person

criminal_procedure

1957-113-01

United States Supreme Court LEWIS v. LABOR BOARD(1958) No. 684 Argued: May 21, 1958Decided: June 9, 1958 In an unfair labor practice proceeding under the National Labor Relations Act, subpoenas duces tecum and ad testificandum directed to petitioners were issued by the Regional Director under the seal of the Board and the facsimile signature of a member, at the request of the Board's General Counsel. Petitioners moved that the Board revoke the subpoenas; the Board referred the motions to the trial examiner; he denied them; petitioners refused to comply; and the Board sued in the District Court for their enforcement. Held: The District Court should have ordered compliance with the subpoenas. Pp. 11-16. 1. The Board's action in referring the motions to the trial examiner was not illegal. Pp. 12-14. (a) Under 11 (1) of the Act, the Board's express authority to revoke subpoenas extends only to those "requiring the production of any evidence," not to those requiring the attendance and testimony of witnesses. P. 12. (b) The Board did not act illegally in delegating to the trial examiner the power to make a preliminary ruling on the motions to revoke the subpoenas duces tecum, since the final decision was reserved to the Board. Labor Board v. Duval Jewelry Co., ante, p. 1. Pp. 12-13. (c) The Board's power under 6 of the Act "to make . . . such rules and regulations as may be necessary to carry out the provisions of this Act" includes the power to make the revocation procedure applicable to subpoenas ad testificandum. P. 14. 2. Since the issuance of subpoenas by "The Board, or any member thereof" upon application of any party is mandatory under 11 (1), it involves no exercise of discretion but is a mere ministerial act which the Board may lawfully delegate to its agents. Pp. 14-15. 3. The General Counsel of the Board is a "party" in an unfair labor practice proceeding, within the meaning of 11 (1), and subpoenas may lawfully be issued upon his request. Pp. 15-16. 249 F.2d 832, affirmed. [357 U.S. 10, 11] Ray L. Johnson, Jr. argued the cause for petitioners. With him on a brief was William M. Farrer for Lewis et al., petitioners. Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Thomas J. McDermott, Dominick L. Manoli and Duane Beeson. MR. JUSTICE DOUGLAS delivered the opinion of the Court. This is a companion case to Labor Board v. Duval Jewelry Co., ante, p. 1, decided this day. While the latter was a representation proceeding under the National Labor Relations Act, the present case is an unfair labor practice proceeding. It was commenced on the issuance of a complaint charging violations of 8 of the Act, 61 Stat. 136, 140, 29 U.S.C. 158, both by petitioner-employer and by petitioner-union. Subpoenas duces tecum and ad testificandum were issued by the Regional Director under the seal of the Board and the facsimile signature of a member. On the day of the hearing petitioners all moved that the subpoenas be revoked. One ground was that they had not been properly issued. Another was that they were issued at the request of the General Counsel of the Board who, it was alleged, was not a "party" to the proceeding within the meaning of the Act. 1 The motions, which were addressed to the Board, [357 U.S. 10, 12] were referred to the trial examiner over objection of petitioners. He denied them. Petitioners refused to appear in response to the subpoenas; and the hearing was continued until they could be enforced. Thereafter the present suit was instituted in the District Court for their enforcement. The District Court denied enforcement on the authority of Labor Board v. Pesante, 119 F. Supp. 444. The Court of Appeals reversed. 249 F.2d 832. The case is here on a writ of certiorari. 355 U.S. 929 . 1. Delegation of authority over the revocation of subpoenas. - The express authority of the Board of revoke extends only to subpoenas "requiring the production of any evidence," not to subpoenas requiring the attendance and testimony of witnesses. 2 So the argument that Congress has disallowed delegation extends only to the subpoenas duces tecum. What we have said in Labor Board v. Duval Jewelry Co., supra, disposes of the argument that the Board has no authority to delegate to a trial examiner the power to rule on motions to revoke those [357 U.S. 10, 13] subpoenas 3 reserving to itself the final decision in the matter. 4 The provisions of those Rules being substantially the same in this type of case as in the representation cases, the results in the two cases should be the same. We [357 U.S. 10, 14] therefore find it unnecessary to consider the argument pressed on us that 7 (b) of the Administrative Procedure Act, 5 60 Stat. 237, 241, 5 U.S.C. 1006, grants a power withheld by the National Labor Relations Act. The power to make the revocation procedure applicable to subpoenas ad testificandum seems clear from the authority of the Board contained in 6 of the Act "to make . . . such rules and regulations as may be necessary to carry out the provisions of this Act." 2. Issuance of subpoenas by the Regional Director. - The Act makes clear 6 that the issuance of subpoenas is mandatory. "The Board, or any member thereof, shall upon application of any party . . . forthwith issue . . . subpenas . . . ." The only function remaining is ministerial. 7 [357 U.S. 10, 15] Consequently the Board supplies blank subpoenas bearing its seal and the facsimile signature of a Board member to its regional offices and trial examiners. Upon application of a proper party the subordinate official automatically issues the subpoena to the applicant. There is here involved no delegation of any act entailing the exercise of discretion, as in Cudahy Packing Co. v. Holland, 315 U.S. 357 . The agents issuing the subpoenas perform ministerial acts only. We cannot read the Act to mean that these burdensome details should be performed by Board members in faraway Washington, D.C. The command of the Act is to issue the subpoena "forthwith" on "application of any party." Identification of the party hardly rises to the dignity of the discretionary act which is confided solely to the agency heads. This has been the consistent view of the law in the lower courts; 8 and we think it is the correct one. 3. The General Counsel of the Board as a "party." - The Act does not define the term "party"; but it does make clear that the role of the General Counsel is a major one. By 3 (d) of the Act he is given "final authority" [357 U.S. 10, 16] respecting the investigation of charges, the issuance of complaints, and the prosecution of complaints before the Board. 9 The General Counsel is, indeed, indispensable to the prosecution of the case. He vindicates the public interest, performing functions previously performed by the Board itself. 10 See National Licorice Co. v. Labor Board, 309 U.S. 350, 352 . Plainly the issuance of subpoenas may often be essential to the performance of that role. To relegate him to a lesser role than that of a "party" is to overlook the critical role he performs in enforcement of the Act. Affirmed. Footnotes [Footnote 1 Section 11 (1) of the Act provides: "For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10 - "(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon [357 U.S. 10, 12] application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required. Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing." [Footnote 2 See 11 (1), supra, note 1. [Footnote 3 Section 102.31 (b) of the Board's Rules and Regulations, 29 CFR, 1958 Cum. Pocket Supp., provides: "Any person subpenaed, if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena upon him, petition in writing to revoke the subpena. All petitions to revoke subpenas shall be served upon the party at whose request the subpena was issued. Such petition to revoke, if made prior to the hearing, shall be filed with the regional director and the regional director shall refer the petition to the trial examiner or the Board for ruling. Petitions to revoke subpenas filed during the hearing shall be filed with the trial examiner. Notice of the filing of petitions to revoke shall be promptly given by the regional director or the trial examiner, as the case may be, to the party at whose request the subpena was issued. The trial examiner or the Board, as the case may be, shall revoke the subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. The trial examiner or the Board, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, any answer filed thereto, and any ruling thereon, shall not become part of the official record except upon the request of the party aggrieved by the ruling." [Footnote 4 Section 102.26 of the Rules provides: "All motions, rulings, and orders shall become part of the record, except that rulings on motions to revoke subpenas shall become a part of the record only upon the request of the party aggrieved thereby, as provided in 102.31. Unless expressly authorized by the rules and regulations, rulings by the regional director and by the trial examiner on motions, by the trial examiner on objections, and orders in connection therewith, shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board in reviewing the record, if exception to the ruling or order is included in the statement of exceptions filed with the Board, pursuant to 102.46. Requests to the Board for special permission to appeal from such rulings of the regional director [357 U.S. 10, 14] or the trial examiner shall be filed promptly, in writing, and shall briefly state the grounds relied on. The moving party shall immediately serve a copy thereof on each other party." [Footnote 5 Section 7 (b) provides: "In hearings which section 4 or 5 requires to be conducted pursuant to this section - . . . . . "Officers presiding at hearings shall have authority, subject to the published rules of the agency and within its powers, to (1) administer oaths and affirmations, (2) issue subpenas authorized by law, (3) rule upon offers of proof and receive relevant evidence, (4) take or cause depositions to be taken whenever the ends of justice would be served thereby, (5) regulate the course of the hearing, (6) hold conferences for the settlement or simplification of the issues by consent of the parties, (7) dispose of procedural requests or similar matters, (8) make decisions or recommend decisions in conformity with section 8, and (9) take any other action authorized by agency rule consistent with this Act." It should be noted that representation proceedings such as were involved in Labor Board v. Duval Jewelry Co., supra, are excepted from some of the requirements of the Administrative Procedure Act. See 4. [Footnote 6 See 11 (1), supra, note 1. [Footnote 7 Section 11 (1) was rewritten by the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C. 151 et seq. Senator Taft said concerning it, 93 Cong. Rec. 6445: "Section 11 authorizes the Board to conduct hearings and investigations and to subpena witnesses. This section was not changed in the Senate amendment and was modified by the conferees in only one respect. The Board is required upon application of any party to issue a subpena as a matter of course. A procedure is established whereby the person subpenaed may move to quash the subpena if the evidence requested thereby does not relate to any matter under investigation or does not describe with sufficient particularity the evidence required." (Italics added.) [Footnote 8 See Labor Board v. John S. Barnes Corp., 178 F.2d 156; Edwards v. Labor Board, 189 F.2d 970; Jackson Packing Co. v. Labor Board, 204 F.2d 842; Labor Board v. Gunaca, 135 F. Supp. 790, aff'd 230 F.2d 542. [Footnote 9 Section 3 (d) reads as follows: "There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than trial examiners and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law." [Footnote 10 Section 3 (d) of the Act effected an important change over the earlier Wagner Act. It was designed to separate the prosecuting from the adjudicating function, to place the former in the General Counsel, and to make him an independent official appointed by the President and confirmed by the Senate for a term of years. See H. R. Rep. No. 245, 80th Cong., 1st Sess. 26; H. R. Rep. No. 510, 80th Cong., 1st Sess. 37; statement of Senator Taft, 93 Cong. Rec. 6859. [357 U.S. 10, 17]

conservative

public_entity

judicial_power

1984-023-01

United States Supreme Court EVITTS v. LUCEY(1985) No. 83-1378 Argued: October 10, 1984Decided: January 21, 1985 After respondent was convicted of a drug offense in a Kentucky state court, his retained counsel filed a timely notice of appeal to the Kentucky Court of Appeals. But because counsel failed to file the statement of appeal required by a Kentucky Rule of Appellate Procedure when he filed his brief and record on appeal, the Court of Appeals dismissed the appeal and later denied a motion for reconsideration. The Kentucky Supreme Court affirmed, and the trial court denied a motion to vacate the conviction or grant a belated appeal. The respondent then sought habeas corpus relief in Federal District Court, challenging the dismissal of his appeal on the ground that it deprived him of the right to effective assistance of counsel on appeal guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court granted a conditional writ of habeas corpus, ordering respondent's release unless the Commonwealth either reinstated his appeal or retried him. The United States Court of Appeals affirmed. Held: The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Pp. 391-405. (a) Nominal representation on an appeal as of right - like nominal representation at trial - does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney. The promise of Douglas v. California, 372 U.S. 353 , that a criminal defendant has a right to counsel on his first appeal as of right - like the promise of Gideon v. Wainwright, 372 U.S. 335 , that a criminal defendant has a right to counsel at trial - would be a futile gesture unless it comprehended the right to effective assistance of counsel. Pp. 391-400. (b) When a State opts to act in a field where its action has significant discretionary elements, such as where it establishes a system of appeals as of right although not required to do so, it must [469 U.S. 387, 388] nonetheless act in accord with the dictates of the Constitution, and, in particular, in accord with the Due Process Clause. Pp. 400-401. (c) Under any reasonable interpretation of the line drawn in Ross v. Moffitt, 417 U.S. 600 , between discretionary appeals in which a criminal defendant has no right to counsel and appeals as of right in which he does, a criminal defendant's appeal of a conviction to the Kentucky Court of Appeals is an appeal as of right. The Kentucky Constitution requires that at least one appeal as of right be allowed in all cases, civil and criminal. And a criminal defendant appealing to the Kentucky Court of Appeals has not previously had an adequate opportunity to present his claims fairly in the context of the State's appellate process. It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v. California, supra. Pp. 401-402. (d) Petitioners' argument that the Due Process Clause has no bearing on the Commonwealth's actions in this case because the constitutional requirements recognized in Griffin v. Illinois, 351 U.S. 12 (the transcript of the trial is a prerequisite to a decision on the merits of an appeal), Douglas v. California, supra, and the cases that followed had their source in the Equal Protection Clause, not the Due Process Clause, rests on a misunderstanding of the diverse sources of this Court's holdings in this area of the law. Both due process and equal protection concerns were implicated in Griffin and Douglas and both Clauses supported those decisions. Pp. 402-405. 724 F.2d 560, affirmed. BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, BURGER, C. J., filed a dissenting opinion, post, p. 405. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 406. J. Gerald Henry, Assistant Attorney General of Kentucky, argued the cause for petitioners. With him on the briefs were David L. Armstrong, Attorney General, and Paul E. Reilender, Jr., Assistant Attorney General. William M. Radigan argued the cause and filed a brief for respondent. JUSTICE BRENNAN delivered the opinion of the Court. Douglas v. California, 372 U.S. 353 (1963), held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as of right. In this case, [469 U.S. 387, 389] we must decide whether the Due Process Clause of the Fourteenth Amendment guarantees the criminal defendant the effective assistance of counsel on such an appeal. I On March 21, 1976, a Kentucky jury found respondent guilty of trafficking in controlled substances. His retained counsel filed a timely notice of appeal to the Court of Appeals of Kentucky, the state intermediate appellate court. Kentucky Rule of Appellate Procedure 1.095(a)(1) required appellants to serve on the appellate court the record on appeal and a "statement of appeal" that was to contain the names of appellants and appellees, counsel, and the trial judge, the date of judgment, the date of notice of appeal, and additional information. 1 See England v. Spalding, 460 S. W. 2d 4, 6 (Ky. 1970) (Rule "is designed to assist this court in processing records and compliance is not jurisdictional"). Respondent's counsel failed to file a statement of appeal when he filed his brief and the record on appeal on September 12, 1977. 2 [469 U.S. 387, 390] When the Commonwealth filed its brief, it included a motion to dismiss the appeal for failure to file a statement of appeal. The Court of Appeals granted this motion because "appellant has failed to supply the information required by RAP 1.095(a)(1)." App. 37a. Respondent moved for reconsideration, arguing that all of the information necessary for a statement of appeal was in fact included in his brief, albeit in a somewhat different format. At the same time, respondent tendered a statement of appeal that formally complied with the Commonwealth Rules. The Court of Appeals summarily denied the motion for reconsideration. Respondent sought discretionary review in the Supreme Court of Kentucky, but the judgment of the Court of Appeals was affirmed in a one-sentence order. In a final effort to gain state appellate review of his conviction, respondent moved the trial court to vacate the judgment or to grant a belated appeal. The trial court denied the motion. Respondent then sought federal habeas corpus relief in the United States District Court for the Eastern District of Kentucky. He challenged the constitutionality of the Commonwealth's dismissal of his appeal because of his lawyer's failure to file the statement of appeal, on the ground that the dismissal deprived him of his right to effective assistance of counsel on appeal guaranteed by the Fourteenth Amendment. The District Court granted respondent a conditional writ of habeas corpus ordering his release unless the Commonwealth either reinstated his appeal or retired him. 3 [469 U.S. 387, 391] The Commonwealth appealed to the Court of Appeals for the Sixth Circuit, which reached no decision on the merits but instead remanded the case to the District Court for determination whether respondent had a claim under the Equal Protection Clause. Lucey v. Seabold, 645 F.2d 547 (1981). On remand, counsel for both parties stipulated that there was no equal protection issue in the case, the only issue being whether the state court's action in dismissing respondent's appeal violated the Due Process Clause. The District Court thereupon reissued the conditional writ of habeas corpus. On January 12, 1984, the Court of Appeals for the Sixth Circuit affirmed the judgment of the District Court. Lucey v. Kavanaugh, 724 F.2d 560. We granted the petition for certiorari. 466 U.S. 949 (1984). We affirm. 4 II Respondent has for the past seven years unsuccessfully pursued every avenue open to him in an effort to obtain a decision on the merits of his appeal and to prove that his conviction was unlawful. The Kentucky appellate courts' refusal to hear him on the merits of his claim does not stem from any view of those merits, and respondent does not argue in this Court that those courts were constitutionally required to render judgment on the appeal in his favor. Rather the issue we must decide is whether the state court's dismissal of the appeal, despite the ineffective [469 U.S. 387, 392] assistance of respondent's counsel on appeal, violates the Due Process Clause of the Fourteenth Amendment. Before analyzing the merits of respondent's contention, it is appropriate to emphasize two limits on the scope of the question presented. First, there is no challenge to the District Court's finding that respondent indeed received ineffective assistance of counsel on appeal. Respondent alleges - and petitioners do not deny in this Court - that his counsel's failure to obey a simple court rule that could have such drastic consequences required this finding. We therefore need not decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Cf. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). Second, the stipulation in the District Court on remand limits our inquiry solely to the validity of the state court's action under the Due Process Clause of the Fourteenth Amendment. 5 Respondent's claim arises at the intersection of two lines of cases. In one line, we have held that the Fourteenth Amendment guarantees a criminal appellant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal "adequate and effective," see Griffin v. Illinois, 351 U.S. 12, 20 (1956); among those safeguards is the right to counsel, see Douglas v. California, 372 U.S. 353 (1963). In the second line, we have held that the trial-level right to counsel, created by the Sixth Amendment and applied to the States through the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 344 (1963), comprehends the right to effective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). The question presented in this case is whether the appellate-level right to counsel also comprehends the right to effective assistance of counsel. [469 U.S. 387, 393] A Almost a century ago, the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors. McKane v. Durston, 153 U.S. 684 (1894). Nonetheless, if a State has created appellate courts as "an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant," Griffin v. Illinois, 351 U.S., at 18 , the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution. In Griffin itself, a transcript of the trial court proceedings was a prerequisite to a decision on the merits of an appeal. See id., at 13-14. We held that the State must provide such a transcript to indigent criminal appellants who could not afford to buy one if that was the only way to assure an "adequate and effective" appeal. Id., at 20; see also Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 215 (1958) (per curiam) (invalidating state rule giving free transcripts only to defendants who could convince trial judge that "justice will thereby be promoted"); Burns v. Ohio, 360 U.S. 252 (1959) (invalidating state requirement that indigent defendants pay fee before filing notice of appeal of conviction); Lane v. Brown, 372 U.S. 477 (1963) (invalidating procedure whereby meaningful appeal was possible only if public defender requested a transcript); Draper v. Washington, 372 U.S. 487 (1963) (invalidating state procedure providing for free transcript only for a defendant who could satisfy the trial judge that his appeal was not frivolous). Just as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits. See Griffin, supra, at 20. Therefore, Douglas v. California, supra, recognized that the principles of Griffin required a [469 U.S. 387, 394] State that afforded a right of appeal to make that appeal more than a "meaningless ritual" by supplying an indigent appellant in a criminal case with an attorney. 372 U.S., at 358 . This right to counsel is limited to the first appeal as of right, see Ross v. Moffitt, 417 U.S. 600 (1974), and the attorney need not advance every argument, regardless of merit, urged by the appellant, see Jones v. Barnes, 463 U.S. 745 (1983). But the attorney must be available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U.S. 258 (1967) (per curiam), and must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant's claim. See Anders v. California, 386 U.S. 738 (1967); see also Entsminger v. Iowa, 386 U.S. 748 (1967). B Gideon v. Wainwright, supra, held that the Sixth Amendment right to counsel was "`so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.'" Id., at 340, quoting Betts v. Brady, 316 U.S. 455, 465 (1942); see also Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938). Gideon rested on the "obvious truth" that lawyers are "necessities, not luxuries" in our adversarial system of criminal justice. 372 U.S., at 344 . "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862 (1975). The defendant's liberty depends on his ability to present his case in the face of "the intricacies of the law and the advocacy of the public prosecutor," United States v. Ash, 413 U.S. 300, 309 (1973); a criminal trial is thus not conducted in accord with due process of law unless the defendant has counsel to represent him. 6 [469 U.S. 387, 395] As we have made clear, the guarantee of counsel "cannot be satisfied by mere formal appointment," Avery v. Alabama, 308 U.S. 444, 446 (1940). "That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. . . . An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S., at 685 ; see also McMann v. Richardson, 397 U.S. 759 771, n. 14 (1970) ("It has long been recognized that the right to counsel is the right to the effective assistance of counsel"); Cuyler v. Sullivan, 446 U.S., at 344 . Last Term, we emphasized this point while clarifying the standards to be used in assessing claims that trial counsel failed to provide effective representation. See United States v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, supra. Because the right to counsel is so fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits. As the quotation from Strickland, supra, makes clear, the constitutional guarantee of effective assistance of counsel at trial applies to every criminal prosecution, without regard to whether counsel is retained or appointed. See Cuyler v. [469 U.S. 387, 396] Sullivan, supra, at 342-345. The constitutional mandate is addressed to the action of the State in obtaining a criminal conviction through a procedure that fails to meet the standards of due process of law. "Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty." Cuyler v. Sullivan, supra, at 343 (citations omitted). C The two lines of cases mentioned - the cases recognizing the right to counsel on a first appeal as of right and the cases recognizing that the right to counsel at trial includes a right to effective assistance of counsel - are dispositive of respondent's claim. In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that - like a trial - is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant - like an unrepresented defendant at trial - is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right - like nominal representation at trial - does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney. 7 This result is [469 U.S. 387, 397] hardly novel. The petitioners in both Anders v. California, 386 U.S. 738 (1967), and Entsminger v. Iowa, 386 U.S. 748 (1967), claimed that, although represented in name by counsel, they had not received the type of assistance constitutionally required to render the appellate proceedings fair. In both cases, we agreed with the petitioners, holding that counsel's failure in Anders to submit a brief on appeal and counsel's waiver in Entsminger of the petitioner's right to a full transcript rendered the subsequent judgments against the petitioners unconstitutional. 8 In short, the promise of Douglas that a criminal defendant has a right to counsel on appeal - like the promise of Gideon that a criminal defendant has a right to counsel at trial - would be a futile gesture unless it comprehended the right to the effective assistance of counsel. Recognition of the right to effective assistance of counsel on appeal requires that we affirm the Sixth Circuit's decision in this case. Petitioners object that this holding will disable state courts from enforcing a wide range of vital procedural rules governing appeals. Counsel may, according to petitioners, disobey such rules with impunity if the state courts are precluded from enforcing them by dismissing the appeal. Petitioners' concerns are exaggerated. The lower federal courts - and many state courts - overwhelmingly have recognized [469 U.S. 387, 398] a right to effective assistance of counsel on appeal. 9 These decisions do not seem to have had dire consequences for the States' ability to conduct appeals in accordance with [469 U.S. 387, 399] reasonable procedural rules. Nor for that matter has the longstanding recognition of a right to effective assistance of counsel at trial - including the recognition in Cuyler v. Sullivan, 446 U.S. 335 (1980), that this right extended to retained as well as appointed counsel - rendered ineffectual the perhaps more complex procedural rules governing the conduct of trials. See also United States v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S. 668 (1984). To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney, rather than against the client. Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term of years in jail on an unlawful conviction. If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights. For instance the Kentucky Supreme Court itself in other contexts has permitted a post-conviction attack on the trial judgment as "the appropriate remedy for frustrated right of appeal," Hammershoy v. Commonwealth, 398 S. W. 2d 883 (1966); this is but one of several solutions that state and federal courts have permitted in similar cases. 10 A system of appeal as of right is established precisely to assure that only those who are [469 U.S. 387, 400] validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant - the right to effective assistance of counsel - has been violated. III Petitioners urge that our reasoning rests on faulty premises. First, petitioners argue that because the Commonwealth need not establish a system of appeals as of right in the first instance, it is immune from all constitutional scrutiny when it chooses to have such a system. Second, petitioners deny that respondent had the right to counsel on his appeal to the Kentucky Court of Appeals because such an appeal was a "conditional appeal," rather than an appeal as of right. Third, petitioners argue that, even if the Commonwealth's actions here are subject to constitutional scrutiny and even if the appeal sought here was an appeal as of right, the Due Process Clause - upon which respondent's claimed right to effective assistance of counsel is based - has no bearing on the Commonwealth's actions in this case. We take up each of these three arguments in turn. A In support of their first argument, petitioners initially rely on McKane v. Durston, 153 U.S. 684 (1894), which held that a State need not provide a system of appellate review as of right at all. See also Ross v. Moffitt, 417 U.S., at 611 ; Jones v. Barnes, 463 U.S., at 751 . Petitioners derive from this proposition the much broader principle that "whatever a state does or does not do on appeal - whether or not to have an appeal and if so, how to operate it - is of no due process concern to the Constitution . . . ." Brief for Petitioners 23. It would follow that the Kentucky court's action in cutting off respondent's appeal because of his attorney's incompetence would be permissible under the Due Process Clause. The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due [469 U.S. 387, 401] process norms. For instance, although a State may choose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause. See Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Similarly, a State has great discretion in setting policies governing parole decisions, but it must nonetheless make those decisions in accord with the Due Process Clause. See Morrissey v. Brewer, 408 U.S. 471, 481 -484 (1972). See also Graham v. Richardson, 403 U.S. 365, 374 (1971); Bell v. Burson, 402 U.S. 535, 539 (1971); Sherbert v. Verner, 374 U.S. 398, 404 (1963); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 165 -166 (1951) (Frankfurter, J., concurring). In short, when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution - and, in particular, in accord with the Due Process Clause. B Petitioners' second argument relies on the holding of Ross v. Moffitt, supra, that a criminal defendant has a right to counsel only on appeals as of right, not on discretionary state appeals. According to petitioners, the Kentucky courts permit criminal appeals only on condition that the appellant follow the local rules and statutes governing such appeals. See Brown v. Commonwealth, 551 S. W. 2d 557, 559 (1977). Therefore, the system does not establish an appeal as of right, but only a "conditional appeal" subject to dismissal if the state rules are violated. Petitioners conclude that if respondent has no appeal as of right, he has no right to counsel - or to effective assistance of counsel - on his "conditional appeal." Under any reasonable interpretation of the line drawn in Ross between discretionary appeals and appeals as of right, a criminal defendant's appeal of a conviction to the Kentucky Court of Appeals is an appeal as of right. Section 115 of the [469 U.S. 387, 402] Kentucky Constitution provides that "[i]n all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court." Unlike the appellant in the discretionary appeal in Ross, a criminal appellant in the Kentucky Court of Appeals typically has not had the benefit of a previously prepared trial transcript, a brief on the merits of the appeal, or a previous written opinion. See Ross, supra, at 615. In addition, petitioners fail to point to any source of Kentucky law indicating that a decision on the merits in an appeal like that of respondent - unlike the discretionary appeal in Ross - is contingent on a discretionary finding by the Court of Appeals that the case involves significant public or jurisprudential issues; the purpose of a first appeal in the Kentucky court system appears to be precisely to determine whether the individual defendant has been lawfully convicted. In short, a criminal defendant bringing an appeal to the Kentucky Court of Appeals has not previously had "an adequate opportunity to present his claims fairly in the context of the State's appellate process." See 417 U.S., at 616 . It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v. California, 372 U.S. 353 (1963). C Finally, petitioners argue that even if the Due Process Clause does apply to the manner in which a State conducts its system of appeals and even if the appeal denied to respondent was an appeal as of right, the Due Process Clause nonetheless is not offended by the Kentucky court's refusal to decide respondent's appeal on the merits, because that Clause has no role to play in granting a criminal appellant the right to counsel - or a fortiori to the effective assistance of counsel - on appeal. Although it may seem that Douglas and its progeny defeat this argument, petitioners attempt to distinguish these cases by exploiting a seeming ambiguity in our previous decisions. [469 U.S. 387, 403] According to the petitioners, the constitutional requirements recognized in Griffin, Douglas, and the cases that followed had their source in the Equal Protection Clause, and not the Due Process Clause, of the Fourteenth Amendment. In support of this contention, petitioners point out that all of the cases in the Griffin line have involved claims by indigent defendants that they have the same right to a decision on the merits of their appeal as do wealthier defendants who are able to afford lawyers, transcripts, or the other prerequisites of a fair adjudication on the merits. As such, petitioners claim, the cases all should be understood as equal protection cases challenging the constitutional validity of the distinction made between rich and poor criminal defendants. Petitioners conclude that if the Due Process Clause permits criminal appeals as of right to be forfeited because the appellant has no transcript or no attorney, it surely permits such appeals to be forfeited when the appellant has an attorney who is unable to assist in prosecuting the appeal. Petitioners' argument rests on a misunderstanding of the diverse sources of our holdings in this area. In Ross v. Moffitt, 417 U.S., at 608 -609, we held that "[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment." Accord, Bearden v. Georgia, 461 U.S. 660, 665 (1983) ("Due process and equal protection principles converge in the Court's analysis in these cases"). See also Note, The Supreme Court, 1962 Term, 77 Harv. L. Rev. 62, 107, n. 13 (1963) (citing cases). This rather clear statement in Ross that the Due Process Clause played a significant role in prior decisions is well supported by the cases themselves. In Griffin, for instance, the State had in effect dismissed petitioner's appeal because he could not afford a transcript. In establishing a system of appeal as of right, the State had implicitly determined that it was unwilling to curtail drastically a defendant's liberty unless a second judicial decisionmaker, [469 U.S. 387, 404] the appellate court, was convinced that the conviction was in accord with law. But having decided that this determination was so important - having made the appeal the final step in the adjudication of guilt or innocence of the individual, see Griffin, 351 U.S., at 18 - the State could not in effect make it available only to the wealthy. Such a disposition violated equal protection principles because it distinguished between poor and rich with respect to such a vital right. But it also violated due process principles because it decided the appeal in a way that was arbitrary with respect to the issues involved. In Griffin, we noted that a court dispensing "justice" at the trial level by charging the defendant for the privilege of pleading not guilty "would make the constitutional promise of a fair trial a worthless thing." Id., at 17. Deciding an appeal on the same basis would have the same obvious - and constitutionally fatal - defect. See also Douglas, supra, at 357 (procedure whereby indigent defendant must demonstrate merit of case before obtaining counsel on appeal "does not comport with fair procedure"); Anders v. California, 386 U.S., at 744 ("constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate") (emphasis added). Our decisions in Anders, Entsminger v. Iowa, 386 U.S. 748 (1967), and Jones v. Barnes, 463 U.S. 745 (1983), are all inconsistent with petitioners' interpretation. As noted above, all of these cases dealt with the responsibilities of an attorney representing an indigent criminal defendant on appeal. 11 Although the Court reached a different result in Jones from that reached in Anders and Entsminger, all of these cases rest on the premise that a State must supply indigent criminal appellants with attorneys who can provide specified types of assistance - that is, that such appellants have a right to effective assistance of counsel. Petitioners claim that all such rights enjoyed by criminal appellants have [469 U.S. 387, 405] their source in the Equal Protection Clause, and that such rights are all measured by the rights of nonindigent appellants. But if petitioners' argument in the instant case is correct, nonindigent appellants themselves have no right to effective assistance of counsel. It would follow that indigent appellants also have no right to effective assistance of counsel, and all three of these cases erred in reaching the contrary conclusion. The lesson of our cases, as we pointed out in Ross, supra, at 609, is that each Clause triggers a distinct inquiry: "`Due Process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. `Equal Protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable." 12 In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants - indigent ones - differently for purposes of offering them a meaningful appeal. Both of these concerns were implicated in the Griffin and Douglas cases and both Clauses supported the decisions reached by this Court. Affirmed. Footnotes [Footnote 1 Kentucky Rule of Appellate Procedure 1.090 provided: "In all cases the appellant shall file with the record on appeal a statement setting forth: (a) The name of each appellant and each appellee. . . . (b) The name and address of counsel for each appellant and each appellee. (c) The name and address of the trial judge. (d) The date the judgment appealed from was entered, and the page of the record on appeal on which it may be found. . . . (e) The date the notice of appeal was filed and the page of the record on appeal on which it may be found. (f) Such of the following facts, if any, as are true: (1) a notice of cross appeal has been filed; (2) a supersedeas bond has been executed; (3) any reason the appeal should be advanced; (4) this is a suit involving multiple claims and judgment has been made final . . .; (5) there is another appeal pending in a case which involves the same transaction or occurrence, or a common question of law or fact, with which this appeal should be consolidated, giving the style of the other case; (6) the appellant is free on bond." As set forth in Brief for Petitioners 9-10, n. 3. [Footnote 2 The argument headings on the appellate brief were: "I. It Was Error to Admit Photographs of the Appellant Into Evidence Which Lacked Any Probative Value and Served Only to Mislead and to Arouse the Passion and Prejudice of the Jury. . . . II. The Trial Court's charge to the Jury Failed [469 U.S. 387, 390] to Meet the Requirements of the Due Process of Law. . . . III. The Appellant Was Denied His Constitutional Right to a Fair Trial by Improper Conduct During the Trial and by Prejudicial Comments Made by the Prosecutor During His Summation." App. 7a-9a. The merits of none of these claims are before us. [Footnote 3 The District Court also referred respondent's counsel to the Board of Governors of the Kentucky State Bar Association for disciplinary proceedings for "attacking his own work product." See id., at 44a. Respondent is not represented by the same counsel before this Court. [Footnote 4 The Commonwealth informed this Court five days prior to oral argument that respondent had been finally released from custody and his civil rights, including suffrage and the right to hold public office, restored as of May 10, 1983. However, respondent has not been pardoned and some collateral consequences of his conviction remain, including the possibility that the conviction would be used to impeach testimony he might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future. This case is thus not moot. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Sibron v. New York, 392 U.S. 40, 55 -57 (1968). [Footnote 5 Seemingly, respondent entered the stipulation because his attorney on appeal had been retained, not appointed. [Footnote 6 Our cases dealing with the right to counsel - whether at trial or on appeal - have often focused on the defendant's need for an attorney to meet [469 U.S. 387, 395] the adversary presentation of the prosecutor. See, e. g., Douglas v. California, 372 U.S. 353, 358 (1963) (noting the benefit of "counsel's examination into the record, research of the law, and marshalling of arguments on [client's] behalf"). Such cases emphasize the defendant's need for counsel in order to obtain a favorable decision. The facts of this case emphasize a different, albeit related, aspect of counsel's role, that of expert professional whose assistance is necessary in a legal system governed by complex rules and procedures for the defendant to obtain a decision at all - much less a favorable decision - on the merits of the case. In a situation like that here, counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; in this sense, it is difficult to distinguish respondent's situation from that of someone who had no counsel at all. Cf. Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748 (1967). [Footnote 7 As Ross v. Moffitt, 417 U.S. 600 (1974), held, the considerations governing a discretionary appeal are somewhat different. See infra, [469 U.S. 387, 397] at 401-402. Of course, the right to effective assistance of counsel is dependent on the right to counsel itself. See Wainwright v. Torna, 455 U.S. 586, 587 -588 (1982) (per curiam) ("Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely") (footnote omitted). [Footnote 8 Moreover, Jones v. Barnes, 463 U.S. 745 (1983), adjudicated a similar claim "of ineffective assistance by appellate counsel." Id., at 749. In Jones, the appellate attorney had failed to raise every issue requested by the criminal defendant. This Court rejected the claim, not because there was no right to effective assistance of appellate counsel, but because counsel's conduct in fact served the goal of "vigorous and effective advocacy." Id., at 754. The Court's reasoning would have been entirely superfluous if there were no right to effective assistance of counsel in the first place. [Footnote 9 See, e. g., Francois v. Wainwright, 741 F.2d 1275, 1284-1285 (CA11 1984); Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (CA2), cert. denied, post, p. 869; Branch v. Cupp, 736 F.2d 533, 537-538 (CA9 1984); Alvord v. Wainwright, 725 F.2d 1282, 1291 (CA11), cert. denied, post, p. 956; Cunningham v. Henderson, 725 F.2d 32 (CA2 1984); Doyle v. United States, 721 F.2d 1195 (CA9 1983); Gilbert v. Sowders, 646 F.2d 1146 (CA6 1981) (per curiam) (dismissal of appeal because retained counsel ran afoul of "highly technical procedural rule" violated due process); Perez v. Wainwright, 640 F.2d 596, 598, n. 3 (CA5 1981) (citing cases), cert. denied, 456 U.S. 910 (1982); Robinson v. Wyrick, 635 F.2d 757 (CA8 1981); Cleaver v. Bordenkircher, 634 F.2d 1010 (CA6 1980), cert. denied sub nom. Sowders v. Cleaver, 451 U.S. 1008 (1981); Miller v. McCarthy, 607 F.2d 854, 857-858 (CA9 1979); Passmore v. Estelle, 594 F.2d 115 (CA5 1979), cert. denied, 446 U.S. 937 (1980); Cantrell v. Alabama, 546 F.2d 652, 653 (CA5), cert. Denied, 431 U.S. 959 (1977); Walters v. Harris, 460 F.2d 988, 990 (CA4 1972), cert. denied sub nom. Wren v. United States, 409 U.S. 1129 (1973); Macon v. Lash, 458 F.2d 942, 949-950 (CA7 1972); Hill v. Page, 454 F.2d 679 (CA10 1971) (performance of retained counsel on appeal to be judged by standards of Anders and Entsminger); Blanchard v. Brewer, 429 F.2d 89 (CA8 1970) (dismissal of appeal when retained counsel failed to serve papers properly held violation of due process); Williams v. United States, 402 F.2d 548 (CA8 1968); see also Harkness v. State, 264 Ark. 561, 572 S. W. 2d 835 (1978); (per curiam); People v. Barton, 21 Cal. 3d 513, 579 P.2d 1043 (1978); Erb v. State, 332 A. 2d 137 (Del. 1974); Hines v. United States, 237 A. 2d 827 (D.C. 1968); Barclay v. Wainwright, 444 So.2d 956 (Fla. 1984); McAuliffe v. Rutledge, 231 Ga. 745, 204 S. E. 2d 141 (1974); State v. Erwin, 57 Haw. 268, 554 P.2d 236 (1976); People v. Brown, 39 Ill. 2d 307, 235 N. E. 2d 562 (1968); Burton v. State, 455 N. E. 2d 938 (Ind. 1983); Wilson v. State, 284 Md. 664, 669-671, 399 A. 2d 256, 258-260 (1979); Irving v. State, 441 So.2d 846, 856 (Miss. 1983); People v. Gonzalez, 47 N. Y. 2d 606, 393 N. E. 2d 987 (1979); Shipman v. Gladden, 253 Ore. 192, 453 P.2d 921 (1969); Commonwealth v. Wilkerson, 490 Pa. 296, 416 A. 2d 477 (1980); Grooms v. State, 320 N. W. 2d 149 (S. D. 1982); In re Savo, 139 Vt. 527, 431 A. 2d 482 (1981); Rhodes v. Leverette, 160 W. Va. 781, 239 S. E. 2d 136 (1977). These cases diverge widely in the standards used to judge ineffectiveness, the remedy ordered, and the rationale used. We express no opinion as to the merits of any of these decisions. [Footnote 10 In Stahl v. Commonwealth, 613 S. W. 2d 617 (1981), the Kentucky Supreme Court noted that, if on a postconviction motion the defendant could prove that counsel was ineffective on appeal, "the proper procedure is for the trial court to vacate the judgment and enter a new one, whereupon an appeal may be taken from the new judgment." Id., at 618. See also Rodriquez v. United States, 395 U.S. 327, 332 (1969) (ordering similar remedy for denial of appeal in federal prosecution); United States v. Winterhalder, 724 F.2d 109 (CA10 1983) (per curiam) (discussing remedies). [Footnote 11 See supra, at 396-397. [Footnote 12 See also Bearden v. Georgia, 461 U.S. 660, 665 (1983). We went on in Ross to analyze the issue presented there - the right to counsel on discretionary appeals - primarily in terms of the Equal Protection Clause. See 417 U.S., at 611 . However, neither Ross nor any of the other cases in the Griffin line ever rejected the proposition that the Due Process Clause exerted a significant influence on our analysis in this area. CHIEF JUSTICE BURGER, dissenting. Few things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in [469 U.S. 387, 406] the courts, than the interminable appeals, the retrials, and the lack of finality. Today, the Court, as JUSTICE REHNQUIST cogently points out, adds another barrier to finality and one that offers no real contribution to fairer justice. I join JUSTICE REHNQUIST in dissenting. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. In this case the Court creates virtually out of whole cloth a Fourteenth Amendment due process right to effective assistance of counsel on the appeal of a criminal conviction. The materials with which it works - previous cases requiring that indigents be afforded the same basic tools as those who are not indigent in appealing their criminal convictions, and our cases interpreting the Sixth Amendment's guarantee of the "assistance of counsel" at a criminal trial - simply are not equal to the task they are called upon to perform. The Court relies heavily on the statement in Ross v. Moffitt, 417 U.S. 600, 608 -609 (1974), that "[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause . . . and some from the Due Process Clause." But today's Court ignores the conclusion of the six Justices who joined in Ross: "Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis." Id., at 611. As further precedential support for a right to due process on appeal, the Court cites passing dictum in Bearden v. Georgia, 461 U.S. 660 (1983), but that case has nothing to do with appellate review. In fact, this Court's precedents have not imposed any procedural requirements on state appeals other [469 U.S. 387, 407] than to bar procedures that operate to accord indigents a narrower scope of appellate review than nonindigents. At one place in Douglas v. California, 372 U.S. 353, 357 (1963), the Court stated that the additional obstacles placed in the path of an indigent seeking to appeal a conviction did not "comport with fair procedure," but it explained this unfairness entirely in terms of inequality: "There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself." Id., at 357-358. Even the plurality in Griffin v. Illinois, 351 U.S. 12, 18 -19 (1956), simply held that the Due Process and Equal Protection Clauses protect indigents from "invidious discriminations" on appeal and that such persons "must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." Moreover, Justice Frankfurter, whose concurrence was necessary to the decision, viewed the decision as a matter of equal protection. Id., at 21-22. In similar vein, a fair reading of our other cases dealing with appellate review cited by the Court reveals uniform reliance on equal protection concepts and not due process. * [469 U.S. 387, 408] Contrary to the Court's characterization, Anders v. California, 386 U.S. 738 (1967), Entsminger v. Iowa, 386 U.S. 748 (1967), and Jones v. Barnes, 463 U.S. 745 (1983), do not create for indigents a right to effective assistance of counsel on appeal and thus per force confer such a right on non-indigents; these cases simply require appointed appellate counsel to represent their clients with the same vigor as retained counsel ordinarily represent their paying clients. Neither the language of the Constitution nor this Court's precedents establish a right to effective assistance of counsel on appeal. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" (emphasis added). As the Court observes, this language has been interpreted to confer a right to effective assistance of counsel, and its guarantee has been extended to state criminal prosecutions by incorporation into the Due Process Clause of the Fourteenth Amendment. But the words "prosecutions" and "defense" plainly indicate that the Sixth Amendment right to counsel applies only to trial level proceedings. At this stage, the accused needs an attorney "as a shield to protect him against being `haled into court' by the State and stripped of [469 U.S. 387, 409] his presumption of innocence." Ross v. Moffitt, 417 U.S., at 610 -611. An appeal by a convicted criminal is an entirely different matter. He has been found guilty beyond a reasonable doubt and, if sentenced to a term of imprisonment, is subject to immediate deprivation of his liberty without any constitutional requirement of further proceedings. He seeks "to upset the prior determination of guilt" and universally is permitted to retain an attorney to serve "as a sword" in that endeavor. Id., at 611. There is no question that an attorney is of substantial, if not critical, assistance on appeal, and those who can afford an attorney are well advised to retain one and commonly do so. Accordingly, as a matter of equal protection, we held in Douglas v. California, supra, that the States must provide an attorney to those who cannot afford one so that they stand on equal footing with nonindigents in seeking to upset their convictions. The Court, however, extends that right beyond its supporting rationale. There is no constitutional requirement that a State provide an appeal at all. "It is wholly within the discretion of the State to allow or not to allow such a review." McKane v. Durston, 153 U.S. 684, 687 (1894). If a State decides to confer a right of appeal, it is free to do so "upon such terms as in its wisdom may be deemed proper." Id., at 687-688. This decision was not a constitutional aberration. There was no right of appeal from federal convictions until 1889 when Congress granted a right of direct review in the Supreme Court in capital cases. In 1891 Congress extended this right to include "otherwise infamous" crimes. See Carroll v. United States, 354 U.S. 394, 400 , n. 9 (1957); 1 J. Kent, Commentaries on American Law *325 (1896). Similarly, there was no right of appeal from criminal convictions in England until 1907. See Griffin v. Illinois, 351 U.S., at 21 (Frankfurter, J., concurring in judgment); E. Jenks, A Short History of English Law 353 (6th ed. 1949). In both countries, [469 U.S. 387, 410] the concept of due process in criminal proceedings is addressed almost entirely to the fairness of the trial. Citing Wainwright v. Torna, 455 U.S. 586, 587 -588 (1982) (per curiam), the Court candidly acknowledges that "[o]f course, the right to effective assistance of counsel is dependent on the right to counsel itself." Ante, at 397, n. 7. Proper analysis of our precedents would indicate that apart from the Equal Protection Clause, which respondent has not invoked in this case, there cannot be a constitutional right to counsel on appeal, and that, therefore, even under the logic of the Court there cannot be derived a constitutional right to effective assistance of counsel on appeal. The Court cites by analogy Goldberg v. Kelly, 397 U.S. 254 (1970), for the proposition that a State that confers a right to appeal, though not required to confer such a right, must establish appellate procedures that satisfy the Due Process Clause. Goldberg and the other so-called "entitlement" cases are totally inapposite. They turn on the fact that the State has created a form of "property," and the Due Process Clause by its express terms applies to deprivations of "property." True, the Due Process Clause also expressly applies to deprivations of "liberty," which is the basis for incorporating the Sixth Amendment right to counsel into the Fourteenth Amendment. But respondent's "liberty" was deprived by his lawful state criminal conviction, see Ross v. Moffitt, supra, at 610-611, not his unsuccessful attempt to upset that conviction by appellate attack. The statement in Griffin v. Illinois, supra, at 18, that Illinois has created appellate courts as "an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant" is only a characterization of the Illinois court system by a plurality of the Court and is inconsistent with the general view of state appellate review expressed more recently by six Members of the Court in Ross v. Moffit, supra, at 610-611. [469 U.S. 387, 411] The consequences of the Court's decision seem undesirable. Challenges to trial counsel's performance have become routine in federal habeas petitions. Now lawfully convicted criminals who have no meritorious bases for attacking the conduct of their trials will be able to tie up the courts with habeas petitions alleging defective performance by appellate counsel. The result is akin to the effect created when a mirror is held facing another mirror, the image repeating itself to infinity. Today's decision also undermines the ability of both the state and the federal courts to enforce procedural rules on appeal. Presumably, rules which are common to almost every appellate system in our country providing for dismissal of an appeal for failure to comply with reasonable time limits, see, e. g., Fed. Rule App. Proc. 31(c), can no longer be enforced against a criminal defendant on appeal. The Court's understandable sympathy with a criminal defendant who has been badly served by the lawyer whom he hired to represent him in appealing his conviction has lead it to treat the Due Process Clause of the Fourteenth Amendment as a general dispensing authority, by the use of which the Court may indiscriminately free litigants from the consequences of their attorney's neglect or malpractice. In most other areas of life and law we are bound, often to our prejudice, by the acts and omissions of our agents, and I do not believe that the Fourteenth Amendment prohibits the States from carrying over that generally recognized principle to the prosecution of appeals from a judgment of conviction. [Footnote * See Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 216 (1958) (per curiam) ("[W]e . . . hold that, `[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts,'" quoting Griffin, 351 U.S., at 19 ); Burns v. Ohio, 360 U.S. 252, 258 (1959) ("Indigents must . . . have the same opportunities to invoke the discretion of the Supreme Court of Ohio"); Lane v. Brown, 372 U.S. 477, 484 -485 (1963) ("The present case falls clearly within the area staked out by . . . Griffin, Burns, Smith [v. Bennett, 365 U.S. 708 (1961)], and Eskridge . . . ." "Such a procedure, based on indigency alone, does not meet constitutional standards"); Draper [469 U.S. 387, 408] v. Washington, 372 U.S. 487, 496 (1963) ("[T]he duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds - the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions"); Anders v. California, 386 U.S. 738, 745 (1967) ("assure penniless defendants the same rights and opportunities on appeal - as nearly as is practicable - as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel"); Swenson v. Bosler, 386 U.S. 258, 259 (1967) (per curiam) (assistance of counsel on only appeal as of right "may not be denied to a criminal defendants, solely because of his indigency"). See also Entsminger v. Iowa, 386 U.S. 748, 751 -752 (1967) (relies on Griffin-Douglas line of cases and Anders); Jones v. Barnes, 463 U.S. 745, 750 -754 (1983) (interpreting Douglas and Anders). [469 U.S. 387, 412]

liberal

person

criminal_procedure

1987-045-01

United States Supreme Court ARKANSAS BEST CORP. v. COMMISSIONER(1988) No. 86-751 Argued: December 9, 1987Decided: March 7, 1988 Under 1221 of the Internal Revenue Code, the term "capital asset" means "property held by the taxpayer (whether or not connected with his trade or business), but does not include" five specified classes of property. Between 1968 and 1974, petitioner, a diversified holding company, acquired approximately 65% of a bank's stock. The bank was apparently prosperous until 1972, when federal examiners classified it as a problem bank. In 1975, petitioner sold the bulk of the stock at a loss, which it claimed as an ordinary-loss deduction on its federal income tax return for that year. The Commissioner of Internal Revenue disallowed the deduction, finding that the loss was a capital loss rather than an ordinary loss. The Tax Court, relying on cases interpreting Corn Products Refining Co. v. Commissioner, 350 U.S. 46 , held that, since the stock acquired through 1972 was purchased with a substantial investment purpose, it was a capital asset under 1221 and therefore gave rise to a capital loss when it was sold; however, the loss realized on the stock acquired after 1972 was subject to ordinary-loss treatment since that stock had been bought and held exclusively for the business purpose of protecting petitioner's reputation by fending off the bank's failure. The Court of Appeals reversed the latter determination, ruling that all of the stock sold in 1975 was subject to capital-loss treatment. Held: A taxpayer's motivation in purchasing an asset is irrelevant to the question whether it falls within the broad definition of "capital asset" in 1221. Petitioner's reading of Corn Products as authorizing ordinary-asset treatment for any asset acquired and held for business rather than investment purposes is too expansive. That reading finds no support in 1221's language, which does not mention a business-motive test, and is in direct conflict with 1221's broad definition of capital asset. Similarly, the contention that 1221's five listed exceptions are merely illustrative rather than exhaustive is refuted by the statute's "does not include" phrase, and by the legislative history and the applicable Treasury regulation. Moreover, petitioner's reading would make surplusage of three of the statutory exceptions, whose excluded classes of property would undoubtedly satisfy a business-motive test. Corn Products must instead be interpreted as standing for the narrow [485 U.S. 212, 213] proposition that "hedging" transactions that are an integral part of a business' inventory-purchase system fall within 1221's first exception for "property . . . which would properly be included in the [taxpayer's] inventory." Since petitioner, which is not a dealer in securities, has never suggested that its bank stock falls within the inventory exclusion, Corn Products has no application in the present context. Because petitioner's bank stock falls within 1221's broad definition of "capital asset" and is outside the classes of excluded property, the loss arising from its sale is a capital loss. Pp. 216-223. 800 F.2d 215, affirmed. MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except KENNEDY, J., who took no part in the consideration or decision of the case. Vester T. Hughes, Jr., argued the cause for petitioner. With him on the briefs were David Bryant and Stephen D. Good. Alan I. Horowitz argued the cause for respondent. With him on the brief were Solicitor General Fried, Acting Assistant Attorney General Durney, Deputy Solicitor General Lauber, and Michael L. Paup. * [Footnote * Thomas Smidt II, Charles L. Saunders, Jr., and A. Jerry Busby filed a brief for Circle K. Corp. as amicus curiae urging reversal. Briefs of amici curiae were filed for Kraft, Inc., by Don S. Harnack, James L. Malone III, Richard A. Hanson, and Thomas J. McHugh; and for the National Council of Farmer Cooperatives by Arthur E. Bryan, Jr., George W. Benson, and James S. Krzyminski. JUSTICE MARSHALL delivered the opinion of the Court. The issue presented in this case is whether capital stock held by petitioner Arkansas Best Corporation (Arkansas Best) is a "capital asset" as defined in 1221 of the Internal Revenue Code regardless of whether the stock was purchased and held for a business purpose or for an investment purpose. I Arkansas Best is a diversified holding company. In 1968 it acquired approximately 65% of the stock of the National [485 U.S. 212, 214] Bank of Commerce (Bank) in Dallas, Texas. Between 1969 and 1974, Arkansas Best more than tripled the number of shares it owned in the Bank, although its percentage interest in the Bank remained relatively stable. These acquisitions were prompted principally by the Bank's need for added capital. Until 1972, the Bank appeared to be prosperous and growing, and the added capital was necessary to accommodate this growth. As the Dallas real estate market declined, however, so too did the financial health of the Bank, which had a heavy concentration of loans in the local real estate industry. In 1972, federal examiners classified the Bank as a problem bank. The infusion of capital after 1972 was prompted by the loan portfolio problems of the bank. Petitioner sold the bulk of its Bank stock on June 30, 1975, leaving it with only a 14.7% stake in the Bank. On its federal income tax return for 1975, petitioner claimed a deduction for an ordinary loss of $9,995,688 resulting from the sale of the stock. The Commissioner of Internal Revenue disallowed the deduction, finding that the loss from the sale of stock was a capital loss, rather than an ordinary loss, and that it therefore was subject to the capital loss limitations in the Internal Revenue Code. 1 Arkansas Best challenged the Commissioner's determination in the United States Tax Court. The Tax Court, relying on cases interpreting Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955), held that stock purchased with a substantial investment purpose is a capital asset which, when sold, gives rise to a capital gain or loss, whereas stock purchased and held for a business purpose, without any substantial investment motive, is an ordinary asset whose sale gives rise to ordinary gains or losses. See 83 T. C. 640, [485 U.S. 212, 215] 653-654 (1984). The court characterized Arkansas Best's acquisitions through 1972 as occurring during the Bank's "`growth' phase," and found that these acquisitions "were motivated primarily by investment purpose and only incidentally by some business purpose." Id., at 654. The stock acquired during this period therefore constituted a capital asset, which gave rise to a capital loss when sold in 1975. The court determined, however, that the acquisitions after 1972 occurred during the Bank's "`problem' phase," ibid., and, except for certain minor exceptions, "were made exclusively for business purposes and subsequently held for the same reasons." Id., at 656. These acquisitions, the court found, were designed to preserve petitioner's business reputation, because without the added capital the Bank probably would have failed. Id., at 656-657. The loss realized on the sale of this stock was thus held to be an ordinary loss. The Court of Appeals for the Eighth Circuit reversed the Tax Court's determination that the loss realized on stock purchased after 1972 was subject to ordinary-loss treatment, holding that all of the Bank stock sold in 1975 was subject to capital-loss treatment. 800 F.2d 215 (1986). The court reasoned that the Bank stock clearly fell within the general definition of "capital asset" in Internal Revenue Code 1221, and that the stock did not fall within any of the specific statutory exceptions to this definition. The court concluded that Arkansas Best's purpose in acquiring and holding the stock was irrelevant to the determination whether the stock was a capital asset. We granted certiorari, 480 U.S. 930 , and now affirm. II Section 1221 of the Internal Revenue Code defines "capital asset" broadly as "property held by the taxpayer (whether or not connected with his trade or business)," and then excludes five specific classes of property from capital-asset [485 U.S. 212, 216] status. In the statute's present form, 2 the classes of property exempted from the broad definition are (1) "property of a kind which would properly be included in the inventory of the taxpayer"; (2) real property or other depreciable property used in the taxpayer's trade or business; (3) "a copyright, a literary, musical, or artistic composition," or similar property; (4) "accounts or notes receivable acquired in the ordinary course of trade or business for services rendered" or from the sale of inventory; and (5) publications of the Federal Government. Arkansas Best acknowledges that the Bank stock falls within the literal definition of "capital asset" in 1221, and is outside of the statutory exclusions. It asserts, however, that this determination does not end the inquiry. Petitioner argues that in Corn Products Refining Co. v. Commissioner, supra, this Court rejected a literal reading of 1221, and concluded that assets acquired and sold for ordinary business purposes rather than for investment purposes should be given ordinary-asset treatment. Petitioner's reading of Corn Products finds much support in the academic literature 3 and in the courts. 4 Unfortunately for petitioner, this broad reading finds no support in the language of 1221. [485 U.S. 212, 217] In essence, petitioner argues that "property held by the taxpayer (whether or not connected with his trade or business)" does not include property that is acquired and held for a business purpose. In petitioner's view an asset's status as "property" thus turns on the motivation behind its acquisition. This motive test, however, is not only nowhere mentioned in 1221, but it is also in direct conflict with the parenthetical phrase "whether or not connected with his trade or business." The broad definition of the term "capital asset" explicitly makes irrelevant any consideration of the property's connection with the taxpayer's business, whereas petitioner's rule would make this factor dispositive. 5 In a related argument, petitioner contends that the five exceptions listed in 1221 for certain kinds of property are illustrative, rather than exhaustive, and that courts are therefore free to fashion additional exceptions in order to further the general purposes of the capital-asset provisions. The language of the statute refutes petitioner's construction. Section 1221 provides that "capital asset" means "property held by the taxpayer[,] . . . but does not include" the five classes [485 U.S. 212, 218] of property listed as exceptions. We believe this locution signifies that the listed exceptions are exclusive. The body of 1221 establishes a general definition of the term "capital asset," and the phrase "does not include" takes out of that broad definition only the classes of property that are specifically mentioned. The legislative history of the capital-asset definition supports this interpretation, see H. R. Rep. No. 704, 73d Cong., 2d Sess., 31 (1934) ("[T]he definition includes all property, except as specifically excluded"); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A273 (1954) ("[A] capital asset is property held by the taxpayer with certain exceptions"), as does the applicable Treasury regulation, see 26 CFR 1.1221-1(a) (1987) ("The term `capital assets' includes all classes of property not specifically excluded by section 1221"). Petitioner's reading of the statute is also in tension with the exceptions listed in 1221. These exclusions would be largely superfluous if assets acquired primarily or exclusively for business purposes were not capital assets. Inventory, real or depreciable property used in the taxpayer's trade or business, and accounts or notes receivable acquired in the ordinary course of business, would undoubtedly satisfy such a business-motive test. Yet these exceptions were created by Congress in separate enactments spanning 30 years. 6 Without any express direction from Congress, we are unwilling to read 1221 in a manner that makes surplusage of these statutory exclusions. [485 U.S. 212, 219] In the end, petitioner places all reliance on its reading of Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955) - a reading we believe is too expansive. In Corn Products, the Court considered whether income arising from a taxpayer's dealings in corn futures was entitled to capital-gains treatment. The taxpayer was a company that converted corn into starches, sugars, and other products. After droughts in the 1930's caused sharp increases in corn prices, the company began a program of buying corn futures to assure itself an adequate supply of corn and protect against price increases. See id., at 48. The company "would take delivery on such contracts as it found necessary to its manufacturing operations and sell the remainder in early summer if no shortage was imminent. If shortages appeared, however, it sold futures only as it bought spot corn for grinding." Id., at 48-49. The Court characterized the company's dealing in corn futures as "hedging." Id., at 51. As explained by the Court of Appeals in Corn Products, "[h]edging is a method of dealing in commodity futures whereby a person or business protects itself against price fluctuations at the time of delivery of the product which it sells or buys." 215 F.2d 513, 515 (CA2 1954). In evaluating the company's claim that the sales of corn futures resulted in capital gains and losses, this Court stated: "Nor can we find support for petitioner's contention that hedging is not within the exclusions of [ 1221]. Admittedly, petitioner's corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of [ 1221] must not be so broadly applied as to defeat rather than further the purpose of Congress. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. [485 U.S. 212, 220] . . . Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly." 350 U.S., at 51 -52 (citations omitted). The Court went on to note that hedging transactions consistently had been considered to give rise to ordinary gains and losses, and then concluded that the corn futures were subject to ordinary-asset treatment. Id., at 52-53. The Court in Corn Products proffered the oft-quoted rule of construction that the definition of "capital asset" must be narrowly applied and its exclusions interpreted broadly, but it did not state explicitly whether the holding was based on a narrow reading of the phrase "property held by the taxpayer," or on a broad reading of the inventory exclusion of 1221. In light of the stark language of 1221, however, we believe that Corn Products is properly interpreted as involving an application of 1221's inventory exception. Such a reading is consistent both with the Court's reasoning in that case and with 1221. The Court stated in Corn Products that the company's futures transactions were "an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements." 350 U.S., at 50 . The company bought, sold, and took delivery under the futures contracts as required by the company's manufacturing needs. As Professor Bittker notes, under these circumstances, the futures can "easily be viewed as surrogates for the raw material itself." 2B. Bittker, Federal Taxation of Income, Estates and Gifts § 51.10.3, p. 51-62 (1981). The Court of Appeals for the Second Circuit in Corn Products clearly took this approach. That court stated that when commodity futures are "utilized solely for the purpose of stabilizing inventory cost[,] . . . [they] cannot reasonably be separated from the inventory items," and concluded that "property used in hedging transactions [485 U.S. 212, 221] properly comes within the exclusions of [ 1221]." 215 F.2d, at 516. This Court indicated its acceptance of the Second Circuit's reasoning when it began the central paragraph of its opinion: "Nor can we find support for petitioner's contention that hedging is not within the exclusions of [ 1221]." 350 U.S., at 51 . In the following paragraph, the Court argued that the Treasury had consistently viewed such hedging transactions as a form of insurance to stabilize the cost of inventory, and cited a Treasury ruling which concluded that the value of a manufacturer's raw-material inventory should be adjusted to take into account hedging transactions in futures contracts. See id., at 52-53 (citing G. C. M. 17322, XV-2 Cum. Bull. 151 (1936)). This discussion, read in light of the Second Circuit's holding and the plain language of 1221, convinces us that although the corn futures were not "actual inventory," their use as an integral part of the taxpayer's inventory-purchase system led the Court to treat them as substitutes for the corn inventory such that they came within a broad reading of "property of a kind which would properly be included in the inventory of the taxpayer" in 1221. Petitioner argues that by focusing attention on whether the asset was acquired and sold as an integral part of the taxpayer's everyday business operations, the Court in Corn Products intended to create a general exemption from capital-asset status for assets acquired for business purposes. We believe petitioner misunderstands the relevance of the Court's inquiry. A business connection, although irrelevant to the initial determination whether an item is a capital asset, is relevant in determining the applicability of certain of the statutory exceptions, including the inventory exception. The close connection between the futures transactions and the taxpayer's business in Corn Products was crucial to whether the corn futures could be considered surrogates for the stored inventory of raw corn. For if the futures dealings were not part of the company's inventory-purchase system, [485 U.S. 212, 222] and instead amounted simply to speculation in corn futures, they could not be considered substitutes for the company's corn inventory, and would fall outside even a broad reading of the inventory exclusion. We conclude that Corn Products is properly interpreted as standing for the narrow proposition that hedging transactions that are an integral part of a business' inventory-purchase system fall within the inventory exclusion of 1221. 7 Arkansas Best, which is not a dealer in securities, has never suggested that the Bank stock falls within the inventory exclusion. Corn Products thus has no application to this case. It is also important to note that the business-motive test advocated by petitioner is subject to the same kind of abuse that the Court condemned in Corn Products. The Court explained in Corn Products that unless hedging transactions were subject to ordinary gain and loss treatment, taxpayers engaged in such transactions could "transmute ordinary income into capital gain at will." 350 U.S., at 53 -54. The hedger could garner capital-asset treatment by selling the future and purchasing the commodity on the spot market, or ordinary-asset treatment by taking delivery under the future contract. In a similar vein, if capital stock purchased and held for a business purpose is an ordinary asset, whereas the same stock purchased and held with an investment motive is a capital asset, a taxpayer such as Arkansas Best could have significant influence over whether the asset would receive capital or ordinary treatment. Because stock is most naturally [485 U.S. 212, 223] viewed as a capital asset, the Internal Revenue Service would be hard pressed to challenge a taxpayer's claim that stock was acquired as an investment, and that a gain arising from the sale of such stock was therefore a capital gain. Indeed, we are unaware of a single decision that has applied the business-motive test so as to require a taxpayer to report a gain from the sale of stock as an ordinary gain. If the same stock is sold at a loss, however, the taxpayer may be able to garner ordinary-loss treatment by emphasizing the business purpose behind the stock's acquisition. The potential for such abuse was evidenced in this case by the fact that as late as 1974, when Arkansas Best still hoped to sell the Bank stock at a profit, Arkansas Best apparently expected to report the gain as a capital gain. See 83 T. C., at 647-648. III We conclude that a taxpayer's motivation in purchasing an asset is irrelevant to the question whether the asset is "property held by a taxpayer (whether or not connected with his business)" and is thus within 1221's general definition of "capital asset." Because the capital stock held by petitioner falls within the broad definition of the term "capital asset" in 1221 and is outside the classes of property excluded from capital-asset status, the loss arising from the sale of the stock is a capital loss. Corn Products Refining Co. v. Commissioner, supra, which we interpret as involving a broad reading of the inventory exclusion of 1221, has no application in the present context. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. Footnotes [Footnote 1 Title 26 U.S.C. 1211(a) states that "[i]n the case of a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of gains from such sales or exchanges." Section 1212(a) establishes rules governing carrybacks and carryovers of capital losses, permitting such losses to offset capital gains in certain earlier or later years. [Footnote 2 In 1975, when petitioner sold its Bank stock, 1221 contained a different exception (5), which excluded certain federal and state debt obligations. See 26 U.S.C. 1221(5) (1970 ed.). That exception was repealed by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 505(a), 95 Stat. 331. The present exception (5) was added by the Tax Reform Act of 1976, Pub. L. 94-455, 2132(a), 90 Stat. 1925. These changes have no bearing on this case. [Footnote 3 See, e. g., 2 B. Bittker, Federal Taxation of Income, Estates and Gifts § 51.10.3, p. 51-62 (1981); Chirelstein, Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments, 49 Minn. L. Rev. 1, 41 (1964); Troxell & Noall, Judicial Erosion of the Concept of Securities as Capital Assets, 19 Tax L. Rev. 185, 187 (1964); Note, The Corn Products Doctrine and Its Application to Partnership Interests, 79 Colum. L. Rev. 341, and n. 3 (1979). [Footnote 4 See, e. g., Campbell Taggart, Inc. v. United States, 744 F.2d 442, 456-458 (CA5 1984); Steadman v. Commissioner, 424 F.2d 1, 5 (CA6), cert. denied, 400 U.S. 869 (1970); Booth Newspapers, Inc. v. United [485 U.S. 212, 217] States, 157 Ct. Cl. 886, 893-896, 303 F.2d 916, 920-921 (1962); W. W. Windle Co. v. Commissioner, 65 T. C. 694, 707-713 (1976). [Footnote 5 Petitioner mistakenly relies on cases in which this Court, in narrowly applying the general definition of "capital asset," has "construed `capital asset' to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income," even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U.S. 54, 57 (1965). See, e. g., Commissioner v. Gillette Motor Co., 364 U.S. 130 (1960) ("capital asset" does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P. G. Lake, Inc., 356 U.S. 260 (1958) ("capital asset" does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U.S. 28 (1941) ("capital asset" does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that 1221 "property" does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income. [Footnote 6 The inventory exception was part of the original enactment of the capital-asset provision in 1924. See Revenue Act of 1924, ch. 234, 208(a)(8), 43 Stat. 263. Depreciable property used in a trade or business was excluded in 1938, see Revenue Act of 1938, ch. 289, 117(a)(1), 52 Stat. 500, and real property used in a trade or business was excluded in 1942, see Revenue Act of 1942, ch. 619, 151(a), 56 Stat. 846. The exception for accounts and notes receivable acquired in the ordinary course of trade or business was added in 1954. Internal Revenue Code of 1954, 1221(4), 68A Stat. 322. [Footnote 7 Although congressional inaction is generally a poor measure of congressional intent, we are given some pause by the fact that over 25 years have passed since Corn Products Refining Co. v. Commissioner was initially interpreted as excluding assets acquired for business purposes from the definition of "capital asset," see Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 303 F.2d 916 (1962), without any sign of disfavor from Congress. We cannot ignore the unambiguous language of 1221, however, no matter how reticent Congress has been. If a broad exclusion from capital-asset status is to be created for assets acquired for business purposes, it must come from congressional action, not silence. [485 U.S. 212, 224]

liberal

public_entity

federal_taxation

1959-063-01

United States Supreme Court MACKEY v. MENDOZA-MARTINEZ(1960) No. 29 Argued: November 10, 1959Decided: April 18, 1960 In this suit by appellee for a declaratory judgment that he is a citizen of the United States, the underlying issue as to the constitutionality of 401 (j) of the Nationality Act of 1940 being clouded by an issue as to whether collateral estoppel prevents the Government from challenging appellee's citizenship, the case is remanded to the District Court with permission to the parties to amend the pleadings, if they so desire, to put in issue the question of collateral estoppel and to obtain an adjudication upon it. Pp. 384-387. Cause remanded. Oscar H. Davis argued the cause for appellants. With him on the brief were Solicitor General Rankin and Assistant Attorney General Wilkey. Thomas R. Davis argued the cause for appellee. With him on the brief were John W. Willis and Vincent P. DiGiorgio. Jack Wasserman, David Carliner and Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, in support of appellee. PER CURIAM. This is a suit by appellee for a declaratory judgment that he is a citizen of the United States. The District Court sustained the contention of the United States that appellee had lost his citizenship by reason of 401 (j) 1 [362 U.S. 384, 385] of the Nationality Act of 1940, 54 Stat. 1137, as amended, 58 Stat. 746, 8 U.S.C. 1481 (a) (10), and the Court of Appeals affirmed. 238 F.2d 239. Meanwhile we had decided Trop v. Dulles, 356 U.S. 86 ; and when certiorari was sought here we granted the petition and remanded the cause to the District Court for reconsideration in light of that decision. 356 U.S. 258 . On remand the District Court held that 401 (j) was unconstitutional. The case is here on direct appeal (28 U.S.C. 1252) from the judgment of the District Court holding that appellee is therefore a citizen of the United States. We noted probable jurisdiction. 359 U.S. 933 . After the case was argued the Court, sua sponte, put to the parties the following questions based on appellee's conviction for draft evasion: 2 "(1) Was the judgment of conviction of appellee for draft evasion premised in any respect upon his [362 U.S. 384, 386] citizenship status after the date of enactment of Section 401 (j)? "(2) If so, does the judgment of conviction for any reason foreclose litigation of the appellee's citizenship in the present case? "(3) Are the foregoing questions appropriate for the Court's consideration?" The parties have filed supplemental briefs and from them it appears that the offense charged, and to which appellee pleaded guilty, was departing from the United States November 15, 1942, to evade service in the Armed Forces and remaining away until November 1, 1946. The statute under which he was convicted placed the duty of service on "every male citizen of the United States, and of every other male person residing in the United States." 54 Stat. 885, as amended, 55 Stat. 844, 50 U.S.C. App. 303 (a) (1940 ed. Supp. I). Appellee contends that while that Act requires service of aliens residing here, it is inapplicable to nonresident aliens; and that therefore the charge in the indictment that appellee remained away could be applicable only if appellee were a citizen. Indeed the facts stipulated in the present case state that he was a citizen by birth. It follows, appellee argues, that the judgment of conviction for draft violation necessarily included an adjudication of citizenship, and that that judgment brings into play the doctrine of collateral estoppel (Washington Packet Co. v. Sickles, 5 Wall. 580; Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 ) since the conviction of draft evasion was subsequent to September 27, 1944, the date of the enactment of 401 (j). The Solicitor General argues, inter alia, that the issue of citizenship was not necessarily involved in the conviction for draft evasion since a charge of evasion by an alien would be made out even though he had left the country provided the duty to serve had attached when he resided here. The Solicitor [362 U.S. 384, 387] General suggests, however, that the avoidance of a constitutional issue when not clearly necessary and the importance of citizenship to the appellee are important factors to be considered in disposing of the case. He is of the view that "there is so little ground for saying that appellee's citizenship status has already been definitively decided, we believe that this issue should not and need not be canvassed by the Court." Yet with his customary candor the Solicitor General says, "But if the Court should be convinced on this record that appellee's citizenship was authoritatively determined in his favor in the 1947 criminal proceeding, we would not oppose a resolution of the case on that basis." The issue of collateral estoppel is a question that clouds the underlying issue of constitutionality. Since the issue of collateral estoppel may be dispositive of the case, we remand the cause to the District Court with permission to the parties to amend the pleadings, if they so desire, to put in issue the question of collateral estoppel and to obtain an adjudication upon it. It is so ordered. Footnotes [Footnote 1 Section 401 (j) reads as follows: "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . . . "(j) Departing from or remaining outside of the jurisdiction of [362 U.S. 384, 385] the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States." [Footnote 2 The facts stipulated in the present case and relevant to that conviction are: "III. Plaintiff was born in the United States on March 3, 1922, and thus was a citizen of the United States at birth. "IV. Under the laws of Mexico plaintiff is now, and ever since his birth has been, a citizen and national of the Republic of Mexico. "V. During 1942 plaintiff departed from the United States and went to Mexico for the sole purpose of evading and avoiding training and service in the Armed Forces of the United States. "VI. Plaintiff remained in Mexico continuously from sometime during 1942 until on or about November 1, 1946 for the sole purpose of evading and avoiding training and service in the Armed Forces of the United States. "VII. On June 23, 1947, plaintiff upon his plea of guilty was convicted in the United States District Court for the Southern District of California for violation of Section 11 of the Selective Service and Training Act of 1940. He was sentenced to imprisonment for a period of one year and one day." Separate memorandum of MR. JUSTICE FRANKFURTER. The Solicitor General's acquiescence in having this case disposed of by avoiding decision of the important constitutional question concerning the validity of 401 (j) of the Nationality Act of 1940, which is the only one presented by the record, probably reflects an understandable desire on the part of the Government to have this Court adjudicate that issue unembarrassed by an extraneous problem that did not come to the surface until this appeal had been submitted. I do not think that this new matter - a claim of collateral estoppel - should be considered here as though this were a court of first instance. No matter how sympathetic one may be towards liberalization of pleading and informality in judicial proceedings, [362 U.S. 384, 388] the intrinsic demands of orderliness in the judicial process require that the issues on which this Court is to render judgment should be appropriately defined through pleadings and proceedings in the lower courts and not be initially shaped for adjudication in this Court. Apart from all else, since taking testimony before this Court has long since ceased to be feasible, we would necessarily have to act on the merits of a claim, based on the rather opaque law of collateral estoppel, resting on documentary submissions not subject to the test of testimonial examination. I am prepared, therefore, to accede to the Solicitor General's suggestion, but to do so by wiping the slate clean. This calls for an appropriate order vacating the proceedings in this Court and in the District Court for the Southern District of California as well as the deportation proceedings which derived from a finding that the appellee has lost his citizenship by reason of 401 (j) of the Nationality Act, a conclusion which is the very issue in controversy. I would do so without summarizing the positions of the parties on the claim of collateral estoppel which is not relevantly before us on this record, and, above all, without any intimation regarding the seriousness of such a claim. MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER join, dissenting. This case having now been in the courts for some six years, we think that proper judicial administration would require the Court to decide the question of collateral estoppel, raised belatedly and sua sponte. As we see it, if the Court can raise that issue here, certainly we can decide it without the additional delay of having the parties go through the motions of amending the pleadings, as suggested. The Court could then pass upon the constitutional issue and advise the Congress of its power in this important field, in which it legislated some 16 years ago. [362 U.S. 384, 389]

liberal

person

civil_rights

1985-094-01

United States Supreme Court BOWEN v. CITY OF NEW YORK(1986) No. 84-1923 Argued: February 26, 1986Decided: June 2, 1986 The Social Security Act provides benefits to disabled persons under two programs administered by the Social Security Administration (SSA): the Social Security Disability Insurance Program (SSD) and the Supplemental Security Income Program (SSI). Regulations for both programs establish a five-step "sequential evaluation" process for determining eligibility for benefits. The initial determination of whether an individual is disabled is made by a state agency under the authority and control of the Secretary of Health and Human Services (Secretary). This determination is subject to review by the SSA. The disappointed claimant is then afforded a three-stage administrative review process. Proceeding through these three stages exhausts the claimant's administrative remedies. Thereafter, he may seek judicial review in Federal District Court, but must do so within 60 days of the Secretary's final decision as required by 42 U.S.C. 405(g). Respondents brought a class action against the Secretary and the Commissioner of the SSA, seeking relief on behalf of all individuals residing in New York who had, within a specified time period, been denied disability benefits or whose benefits were terminated pursuant to an allegedly illegal internal policy of the Secretary. The District Court certified the class as including claimants who had not complied with the 60-day requirement for seeking judicial review and other claimants who had not exhausted their administrative remedies and obtained a final decision of the Secretary as required by 405(g). Holding that the policy in question was illegal, the District Court ordered the Secretary to reopen the decisions denying or terminating benefits and to redetermine eligibility. The Court of Appeals affirmed. Held: 1. The District Court properly included in the class claimants who had received a final decision from the Secretary but did not seek judicial review within the statutory 60-day period. The 60-day requirement is not jurisdictional but rather constitutes a statute of limitations. Equitable tolling of that requirement is consistent with Congress' intent in enacting 405(g), and on the facts of this case the equities are in favor of tolling. Tolling serves the Act's purpose where the internal [476 U.S. 467, 468] policy prevented the claimants from knowing of a violation of their rights. Pp. 478-482. 2. The District Court also properly included in the class claimants who failed to exhaust their administrative remedies. The court did not err in waiving exhaustion not only as to those claimants whose time to pursue further administrative appeals had lapsed but also as to those who still had time to pursue administrative remedies at the time the suit was filed. For claimants whose time to pursue further remedies had lapsed, exhaustion is excused for the same reasons requiring tolling of the 60-day statute of limitations. Since the claimants could not attack a policy of which they were unaware, it would be unfair to penalize them for not exhausting under such circumstances. It was also proper to waive the exhaustion requirement with respect to those claimants who still had time to file suit. The claims in the suit are collateral to the claims for benefits that class members had presented administratively. The class members neither sought nor were awarded benefits in the District Court, but rather challenged the Secretary's failure to follow the regulations. Moreover, the claimants would be irreparably injured if the exhaustion requirement were now enforced against them. The relief afforded by the District Court was fully consistent with the policies underlying exhaustion. Pp. 482-486. 742 F.2d 729 and 755 F.2d 31, affirmed. POWELL, J., delivered the opinion for a unanimous Court. Edwin S. Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Geller, William Kanter, and Howard S. Scher. Frederick A. O. Schwarz, Jr., argued the cause for respondents. With him on the brief were Frederick P. Schaffer, Michael D. Young, Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Paul M. Glickman and Andrea Green, Assistant Attorneys General, Leonard S. Rubenstein, Ambrose Doskow, and Richard L. Claman. * [Footnote * Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Neil F. Hartigan, Attorney General of Illinois, Roma J. Stewart, Solicitor General, Charles A. Graddick, Attorney General of Alabama, Steve Clark, Attorney General of Arkansas, Jim Smith, Attorney General of Florida, Corinne K. A. Watanabe, Attorney General [476 U.S. 467, 469] of Hawaii, Thomas J. Miller, Attorney General of Iowa, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, Vicki Sleeper, Special Assistant Attorney General, Edward Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, W. Cary Edwards, Attorney General of New Jersey, Paul Bardacke, Attorney General of New Mexico, Nicholas Spaeth, Attorney General of North Dakota, Michael C. Turpen, Attorney General of Oklahoma, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Charles G. Brown, Attorney General of West Virginia, Bronson C. La Follette, Attorney General of Wisconsin, and A. G. McClintock, Attorney General of Wyoming; for the City of Chicago by James D. Montgomery; for the American Bar Association by William W. Falsgraf and John H. Pickering; for the American Civil Liberties Union et al. by Burt Neuborne and Charles S. Sims; for the American Psychiatric Association by Joel I. Klein; for the Association of the Bar of the City of New York by Robert B. McKay, Sheldon H. Elsen, John F. K. Cassidy, Peter L. Zimroth, Alexander R. Sussman, Robinson B. Lacy, and John C. Sullivan; and for the National Institute of Municipal Law Officers by Roy D. Bates, William I. Thornton, Jr., John W. Witt, Roger F. Cutler, and George Agnost. [476 U.S. 467, 469] JUSTICE POWELL delivered the opinion of the Court. This class action was brought pursuant to 42 U.S.C. 405(g) challenging an internal policy of the Secretary of Health and Human Services that had the effect of denying disability benefits to numerous claimants who may have been entitled to them. The issues presented are whether the District Court correctly included within the class (i) claimants who had received a final decision on their individual claims for benefits more than 60 days prior to the filing of this action, and (ii) other claimants who had not exhausted their administrative remedies. I The Federal Government provides benefits to disabled persons under two distinct programs administered by the Social Security Administration (SSA). The Social Security [476 U.S. 467, 470] Disability Insurance Program (SSD) established by Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U.S.C. 401 et seq., pays benefits to disabled persons who have contributed to the program and who suffer from a mental or physical disability. The Supplemental Security Income Program (SSI) established by Title XVI of the Act, 86 Stat. 1465, as amended, 42 U.S.C. 1381, provides benefits to indigent disabled persons. Both statutes define "disability" as the "inability to engage in any substantial gainful activity . . . ." 423(d)(1)(A), 1382c(a)(3)(A). An individual is found to be under a disability only if "his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 423(d)(2)(A), 1382c(a)(3)(B). Pursuant to statutory authority, the Secretary of Health and Human Services (Secretary) has adopted complex regulations governing eligibility for SSD and SSI payments. 20 CFR pt. 404, subpart P (1985) (SSD); 20 CFR pt. 404, pt. 416, subpart I (1985) (SSI). The regulations for both programs are essentially the same and establish a five-step "sequential evaluation" process. The first step determines whether the claimant is engaged in "substantial gainful activity." If he is, benefits are denied. 20 CFR 404.1520(a),(b), 416.920(a),(b) (1985). If he is not engaged in such activity, the process moves to the second step, which decides whether the claimant's condition or impairment is "severe" - i. e., one that significantly limits his physical or mental ability to do basic work activities. If the impairment is not severe, benefits are denied. 404.1520(c), 416.920(c). If the impairment is severe, the third step determines whether the claimant's impairments meet or equal those set forth in the "Listing of Impairments" (listings) contained in subpart P, appendix 1, of the regulations, 20 CFR 404.1520(d), 416.920(d). The listings consist of specified [476 U.S. 467, 471] impairments acknowledged by the Secretary to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments are not listed, the process moves to the fourth step, which assesses the individual's "residual functional capacity" (RFC); this assessment measures the claimant's capacity to engage in basic work activities. If the claimant's RFC permits him to perform his prior work, benefits are denied. 404.1520(e), 416.920(e). 1 If the claimant is not capable of doing his past work, a decision is made under the fifth and final step whether, in light of his RFC, age, education, and work experience, he has the capacity to perform other work. 404.1520(f), 416.920(f). If he does not, benefits are awarded. The determination whether an individual is disabled is made initially by a state agency acting under the authority and control of the Secretary. 42 U.S.C. 421(a), 1383b(a); 20 CFR 404.1503, 416.903 (1985); see Heckler v. Day, 467 U.S. 104, 106 , and n. 4 (1984). All decisions by the state agency are subject to Quality Assurance Reviews by the Regional Office and by the Central Baltimore Offices of SSA. If the responsible SSA officials determine during either review that a state agency erred, the case is "returned" to the State for correction. The disappointed claimant is afforded a three-stage administrative review process beginning with de novo reconsideration by the State of the initial determination. 20 CFR [476 U.S. 467, 472] 404.909(a)(1), 416.1409(a) (1985). If a claimant is dissatisfied with the state agency's decision on reconsideration, he is entitled to a hearing by an administrative law judge (ALJ) within SSA's Office of Hearings and Appeals. 42 U.S.C. 405(b) (1) (1982 ed., Supp. II), 42 U.S.C. 1383(c)(1); 20 CFR 404.929, 416.1429, 422.201 et seq. (1985). 2 If the ALJ's decision is adverse to the claimant, the claimant may then seek review by the Appeals Council. 20 CFR 404.967-404.983, 416.1467-416.1483 (1985). Proceeding through these three stages exhausts the claimant's administrative remedies. Following the determination at each stage, a disappointed claimant is notified that he must proceed to the next stage within 60 days of notice of the action taken or the decision will be considered binding. E. g., 20 CFR 404.905, 404.909(a)(1), 416.1405, 416.1409(a), 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468(a) (1985). Thereafter, he may seek judicial review in federal district court, pursuant to 42 U.S.C. 405(g). See 42 U.S.C. 421(d), 1383(c)(3); 20 CFR 404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481, 422.210 (1985). 3 [476 U.S. 467, 473] II On February 8, 1983, respondents the City of New York, the New York City Health and Hospitals Corporation, and two state officials, suing on their own behalf and as parens patriae, together with eight named individuals, brought this class action against the Secretary and the Commissioner of SSA. They sought relief on behalf of all individuals residing in the State who had applied for or received SSD or SSI benefits on or after April 1, 1980, who had been found by petitioners to have a severe mental impairment, and whose applications for benefits either had been or were to be denied, or whose benefits had been or were to be terminated, based on petitioners' determination that the claimants were capable of substantial gainful employment. The gravamen of respondents' complaint was that petitioners had adopted an unlawful, unpublished policy under which countless deserving claimants were denied benefits. They contended that the policy mandated a presumption - applicable at the level of the initial state psychiatric assessment - that a failure to meet or equal the listings was tantamount to a finding of ability to do at least unskilled work; that the presumption led to routine denials of benefits to eligible claimants; and that such a presumption was arbitrary, capricious, and violative of the Constitution, the Social Security Act, and the applicable regulations. Respondents claimed that this internal policy had the effect of eliminating steps four and five from the sequential evaluation process, and thus ignored the requirement for an individualized RFC assessment to determine whether a claimant with a severe condition is nonetheless able to work. They alleged that the policy was never published in the Federal Register as required by the Administrative Procedure Act, but was nonetheless implemented [476 U.S. 467, 474] through various internal memoranda and the "returns" process by which SSA sends cases back to the States for correction. Respondents contended that failure to make the policy known to claimants denied the individual plaintiffs and class members due process of law. A Following a 7-day trial, the District Court held that from 1978 until at least the early months of 1983, 4 SSA followed the covert policy alleged by respondents and that the policy was illegal. City of New York v. Heckler, 578 F. Supp. 1109, 1115 (EDNY 1984). The court noted that the "Act and its regulations require the Secretary to make a realistic, individual assessment of each claimant's ability to engage in substantial gainful activity. See Heckler v. Campbell, [461 U.S. 458 (1983). The class plaintiffs did not receive that assessment." Id., at 1124. 5 Rather, as respondents alleged, [476 U.S. 467, 475] SSA had consistently "followed a policy which presumes that mentally disabled claimants who do not meet or equal the listings necessarily retain sufficient residual functional capacity to do at least `unskilled work.'" Id., at 1115. The District Court further found that these tainted RFC assessments by state review physicians were subsequently given "great weight" by ALJ's in the administrative appeal process. Id., at 1125. Moreover, "[t]he means of enforcement of the policy, through internal memoranda, returns, and reviews, has meant that the affected SSD or SSI applicant as well as counsel, social workers and advisers for a long time were unaware of its existence." Id., at 1115. The court stated that evidence of the "fixed clandestine policy against those with mental illness" was overwhelming. Ibid. The District Court certified a class, 6 and decided that the class properly included claimants who had not exhausted administrative remedies. Relying on Mathews v. Eldridge, [476 U.S. 467, 476] 424 U.S. 319 (1976), the court concluded that this was an appropriate case in which to waive the statutory exhaustion requirement. In the court's view, both parts of the Eldridge test were satisfied here: the claims were collateral to any claim for benefits, and the harm imposed by exhaustion would be irreparable. Similarly, the District Court decided that the class properly included those who had not complied with the requirement that a claimant seek judicial review within 60 days of the Secretary's final decision or "within such further time as the Secretary may allow." 42 U.S.C. 405(g). The court noted that the 60-day requirement is not jurisdictional, but rather is a statute of limitations waivable by the parties. Mathews v. Eldridge, supra, at 328, n. 9; Weinberger v. Salfi, 422 U.S. 749, 763 -764 (1975). Observing that petitioners had made no argument concerning this requirement until their post-trial brief, the court found that "the same reasons which justify implying waiver of the exhaustion requirement are stronger for the sixty day requirement because the statute of limitations is not, as is the exhaustion requirement, `central to the requisite grant of subject-matter jurisdiction.' Weinberger v. Salfi, 422 U.S. 749, 764 . . . (1975)." 578 F. Supp., at 1124. As a remedy, the District Court ordered the Secretary to reopen the decisions denying or terminating benefits, and to redetermine eligibility. As interim relief, the court directed the Secretary to reinstate benefits of all class members who has previously been entitled to benefits but who were subsequently terminated, until the claimant's eligibility was properly determined. 7 [476 U.S. 467, 477] B The Court of Appeals for the Second Circuit affirmed. City of New York v. Heckler, 742 F.2d 729 (1984). On appeal petitioners did not challenge the District Court's findings of fact or ruling on the merits, but only raised contentions respecting the District Court's definition of the appropriate class, and the interim relief awarded. 8 With respect to the composition of the class, petitioners asserted that the District Court lacked jurisdiction under 405(g) over most class members, including (i) claimants who failed to exhaust administrative remedies, and (ii) claimants whose right to pursue administrative or judicial review had lapsed by the time this action was commenced. Id., at 734. The Court of Appeals rejected petitioners' argument that the District Court lacked jurisdiction over the claims of class members who had failed to exhaust their administrative remedies. It upheld the District Court's finding that the harm caused by the wrongful denials was irreparable. While the court did not believe that the claims were "wholly" collateral to claims for benefits, it was satisfied that the class was complaining "fundamentally of a procedural irregularity and not of the Secretary's substantive standards of eligibility." Id., at 737. Moreover, the Court of Appeals believed it was significant that the District Court was not asked to and did not rule on the merits of the underlying benefit claims. The court then rejected petitioners' contention that the District Court should not have included within the class those claimants who failed to seek judicial review within 60 days of an adverse decision by the Secretary. The court agreed with the District Court that the 60-day limitation is not a jurisdictional requirement, but rather is a statute of limitations. Id., at 738, citing Eldridge, supra, at 328, n. 9; Salfi, supra, at 763-764. The Secretary's secretive conduct justified [476 U.S. 467, 478] tolling the period "during the time that SSA's policy of applying the challenged presumption concerning residual functional capacity remained operative but undisclosed." 742 F.2d, at 738. 9 On petition for rehearing, the same panel of the Court of Appeals, per Judge Newman, denied rehearing and in so doing rejected petitioners' argument that passage of the Social Security Disability Benefits Reform Act of 1984, Pub. L. 98-460, 98 Stat. 1794, required the court to alter its holding with respect to the effect of class members' failure to comply with 405(g). City of New York v. Heckler, 755 F.2d 31 (1985). The Secretary sought a writ of certiorari from this Court. We granted certiorari, 474 U.S. 815 (1985), and now affirm. III Petitioners renew here arguments rejected by the Court of Appeals. They challenge on jurisdictional grounds inclusion in the class of two groups of claimants: those who failed to bring a court action within 60 days of a final decision of the Secretary, and those who failed to exhaust administrative remedies. We first consider the requirement embodied in 405(g) that claims must be presented in the District Court within 60 days of a final decision of the Secretary. Petitioners contend that the provision sets the bounds of the District Court's jurisdiction. This argument is foreclosed by two of our prior decisions that have declared that the 60-day requirement is not jurisdictional, but rather constitutes a period of limitations. Eldridge, supra, at 328, n. 9; Salfi, supra, at 764. 10 [476 U.S. 467, 479] Petitioners next contend that if the 60-day limit is a statute of limitations, it is a condition on the waiver of sovereign immunity and thus must be strictly construed. We have no difficulty agreeing with that statement. See Block v. North Dakota, 461 U.S. 273, 287 (1983). Accepting this proposition, however, does not answer the question whether equitable tolling can be applied to this statute of limitations, for in construing the statute we must be careful not to "assume the authority to narrow the waiver that Congress intended," United States v. Kubrick, 444 U.S. 111, 118 (1979), or construe the waiver "unduly restrictively." Block, supra, at 287. In Honda v. Clark, 386 U.S. 484 (1967), the Court held that where consistent with congressional intent, and called for by the facts of the case, it would "apply a traditional equitable tolling principle . . . ." Id., at 501. 11 Petitioners argue that Honda stands for the proposition that equitable tolling is permissible only in cases in which the public treasury is not directly affected. We decline to hold that the doctrine of equitable tolling is so limited. When application of the doctrine is consistent with Congress' intent in enacting a particular statutory scheme, there is no justification for limiting the doctrine to cases that do not involve monetary relief. [476 U.S. 467, 480] We must determine, therefore, whether equitable tolling is consistent with Congress' intent in enacting 405(g), and whether tolling is appropriate on these facts. The statute of limitations we construe in this case is contained in a statute that Congress designed to be "unusually protective" of claimants. Heckler v. Day, 467 U.S., at 106 . Moreover, Congress has authorized the Secretary to toll the 60-day limit, 12 thus expressing its clear intention to allow tolling in some cases. While in most cases the Secretary will make the determination whether it is proper to extend the period within which review must be sought, cases may arise where the equities in favor of tolling the limitations period are "so great that deference to the agency's judgment is inappropriate." Eldridge, 424 U.S., at 330 . As in Honda v. Clark, we conclude that application of a "traditional equitable tolling principle" to the 60-day requirement of 405(g) is fully "consistent with the overall congressional purpose" and is "nowhere eschewed by Congress." 386 U.S., at 501 . We conclude, moreover, that on these facts the equities in favor of tolling are compelling. As the Court of Appeals explained: "All of the class members who permitted their administrative or judicial remedies to expire were entitled to believe that their Government's determination of ineligibility was the considered judgment of an agency faithfully executing the laws of the United States. Though they knew of the denial or loss of benefits, they did not and could not know that those adverse decisions had [476 U.S. 467, 481] been made on the basis of a systematic procedural irregularity that rendered them subject to court challenge. Where the Government's secretive conduct prevents plaintiffs from knowing of a violation of rights, statutes of limitations have been tolled until such time as plaintiffs had a reasonable opportunity to learn the facts concerning the cause of action. Since in this case the full extent of the Government's clandestine policy was uncovered only in the course of this litigation, all class members may pursue this action notwithstanding the 60-day requirement." 742 F.2d, at 738 (citations omitted). In addition to serving its customary purpose, 13 the statute of limitations embodied in 405(g) is a mechanism by which Congress was able to move cases to speedy resolution in a bureaucracy that processes millions of claims annually. Thus, the limitation serves both the interest of the claimant and the interest of the Government. Tolling, in the rare case such as this, does not undermine the purpose of the 60-day limitations period when viewed in connection with the underlying statute. Rather, it serves the purpose of the Act where, as the Court of Appeals stated, "the Government's secretive conduct prevents plaintiffs from knowing of a violation of rights . . . ." Ibid. See also Heckler v. Day, supra, at 106. Tolling of the 60-day limitations period was appropriate in this case, and the District Court properly included in the [476 U.S. 467, 482] class claimants who had received a final decision from the Secretary, but who did not seek judicial review within the statutory 60-day time period. IV Petitioners also contend that the District Court erred in including in the class those members who failed to obtain a "final decision" from the Secretary as required by 405(g). To obtain a final decision from the Secretary a claimant is required to exhaust his administrative remedies by proceeding through all three stages of the administrative appeals process. Only a claimant who proceeds through all three stages receives a final decision from the Secretary. At the outset, we note that by the time this lawsuit was filed, it was too late for a large number of class members to exhaust their claims, since expiration of the 60-day time limits for administrative appeals barred further access to the administrative appeals process. See 20 CFR 404.905, 404.909(a)(1), 416.1405, 416.1409(a), 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468(a) (1985). For these claimants, we conclude that exhaustion is excused for the same reasons requiring tolling of the statute of limitations. Since "[m]embers of the class could not attack a policy they could not be aware existed," 578 F. Supp., at 1118; see Part III, supra, it would be unfair to penalize these claimants for not exhausting under these circumstances. At the time the suit was filed, however, some claimants may still have had time to exhaust their administrative remedies. The question remains whether it was permissible to include these claimants in the class. Resolution of this question is aided by cases in which we have been called upon to consider issues of exhaustion under 405(g). See Weinberger v. Salfi, 422 U.S. 749 (1975); Mathews v. Eldridge, supra; Heckler v. Ringer, 466 U.S. 602 (1984). Our decisions teach that the "final decision" requirement embodied in that section [476 U.S. 467, 483] "consists of two elements, only one of which is purely `jurisdictional' in the sense that it cannot be waived by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary." Mathews v. Eldridge, 424 U.S., at 328 . Ordinarily, the Secretary has discretion to decide when to waive the exhaustion requirement. But as we held in Eldridge, "cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate." 424 U.S., at 330 . Two factors influenced the Court's judgment that Eldridge was a case in which deference to the agency's determination of finality was not necessary. First, the constitutional challenge brought there was "entirely collateral to [a] substantive claim of entitlement." Ibid. Second, the claim rested "on the proposition that full relief cannot be obtained at a postdeprivation hearing." Id., at 331. The petitioner had raised "at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments." Ibid. The claims in this lawsuit are collateral to the claims for benefits that class members had presented administratively. The class members neither sought nor were awarded benefits in the District Court, but rather challenged the Secretary's failure to follow the applicable regulations. Moreover, as in Eldridge, the claimants in this case would be irreparably injured were the exhaustion requirement now enforced against them. The District Court found that class members not only were denied the benefits they were seeking, but "[t]he ordeal of having to go through the administrative appeal process may trigger a severe medical setback. [476 U.S. 467, 484] Many persons have been hospitalized due to the trauma of having disability benefits cut off. Interim benefits will not adequately protect plaintiffs from this harm. Nor will ultimate success if they manage to pursue their appeals." 578 F. Supp., at 1118. Petitioners do not challenge this finding here, and therefore, like the Court of Appeals, "[w]e have no reason to disturb Chief Judge Weinstein's conclusion that the harm caused by wrongful denials was irreparable." 742 F.2d, at 736. We should be especially sensitive to this kind of harm where the Government seeks to require claimants to exhaust administrative remedies merely to enable them to receive the procedure they should have been afforded in the first place. Finally, application of the exhaustion doctrine is "intensely practical." Eldridge, supra, at 331, n. 11. In Salfi, we explained: "Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review." 422 U.S., at 765 . The ultimate decision of whether to waive exhaustion should not be made solely by mechanical application of the Eldridge factors, but should also be guided by the policies underlying the exhaustion requirement. The purposes of exhaustion would not be served by requiring these class members to exhaust administrative remedies. This case is materially distinguishable from one in which a claimant sues in district court, alleging mere deviation from the applicable regulations in his particular administrative proceeding. In the normal course, such individual errors are fully correctable upon subsequent administrative review since the claimant on appeal [476 U.S. 467, 485] will alert the agency to the alleged deviation. Because of the agency's expertise in administering its own regulations, the agency ordinarily should be given the opportunity to review application of those regulations to a particular factual context. Thus, our holding today does not suggest that exhaustion is to be excused whenever a claimant alleges an irregularity in the agency proceedings. These claimants stand on a different footing from one arguing merely that an agency incorrectly applied its regulation. Rather, the District Court found a systemwide, unrevealed policy that was inconsistent in critically important ways with established regulations. Nor did this policy depend on the particular facts of the case before it; rather, the policy was illegal precisely because it ignored those facts. The District Court found that the policy was being adhered to by state agencies due to pressure from SSA, and that therefore exhaustion would have been futile. Under these unique circumstances, there was nothing to be gained from permitting the compilation of a detailed factual record, or from agency expertise. Cf. McKart v. United States, 395 U.S. 185, 200 (1969). In addition, the relief afforded by the District Court is fully consistent with the policies underlying exhaustion. The court did not order that class members be paid benefits. Nor does its decision in any way interfere with the agency's role as the ultimate determiner of eligibility under the relevant statutes and regulations. Indeed, by ordering simply that the claims be reopened at the administrative level, the District Court showed proper respect for the administrative process. It did no more than the agency would have been called upon to do had it, instead of the District Court, been alerted to the charge that an undisclosed procedure was illegal and had improperly resolved innumerable claims. Petitioners correctly assert that, had class members exhausted administrative remedies, some might have received benefits despite the illegal policy. It also is likely that many [476 U.S. 467, 486] may have been disqualified for reasons having nothing to do with the illegal policy. Such observations, however, merely serve to remind us why exhaustion is the rule in the vast majority of cases; they do not aid the Court in deciding when exhaustion should be excused. 14 We hold that the District Court did not err in waiving exhaustion in this case either with respect to those claimants whose time to pursue further administrative appeals had lapsed, or with respect to those claimants who still had time to pursue administrative remedies. [476 U.S. 467, 487] V Government agencies administering complex programs that bridge both state and federal bureaucracies necessarily will take certain actions pursuant to policies unknown to the public. We do not suggest that every internal policy that is found to be inconsistent with legal requirements, and arguably touches upon the outcome of a class of cases, will justify tolling the statute of limitations or excusing exhaustion. But, whatever the outer bounds of our holding today, this case falls well within them. While "hard" cases may arise, this is not one of them. Moreover, we are aware that administrative inconvenience may result from our decision today. But the Secretary had the capability and the duty to prevent the illegal policy found to exist by the District Court. The claimants here were denied the fair and neutral procedure required by the statute and regulations, and they are now entitled to pursue that procedure. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnotes [Footnote 1 The RFC assessment is made by a review physician employed by the state agency under contract with SSA. His written conclusion becomes part of the administrative record of the claim. See, e. g., Plaintiffs' Ex. 50, p. 10; App. 148, 158; Record Doc. No. 73; Tr. 27. The District Court found that this assessment is generally given great weight by the administrative law judge on later review. City of New York v. Heckler, 578 F. Supp. 1109, 1125 (EDNY 1984). [Footnote 2 The Secretary has not provided for a separate reconsideration stage in disability cessation cases under Title XVI. An SSI recipient whose benefits are terminated, therefore, is entitled to proceed directly to an ALJ hearing if he requests one within 60 days of the initial determination. 20 CFR 416.1407, 416.1415 (1985). [Footnote 3 Title 42 U.S.C. 405(g), provides in part: "Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the [476 U.S. 467, 473] pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." [Footnote 4 The District Court noted that in 1983 SSA "yielded to pressure to allow medical vocational allowances for those with mental disabilities. The change was precipitated only after the filing of this lawsuit and after a preliminary injunction was issued on December 22, 1982, in the case of Mental Health Association of Minnesota v. Schweiker, 554 F. Supp. 157 (D. Minn. 1982), aff'd, 720 F.2d 965 (8th Cir. 1983)." 578 F. Supp., at 1115. [Footnote 5 The District Court added: "On the contrary, SSA relied on bureaucratic instructions rather than individual assessments and overruled the medical opinions of its own consulting physicians that many of those whose claims they were instructed to deny could not, in fact, work. Physicians were pressured to reach `conclusions' contrary to their own professional beliefs in cases where they felt, at the very least, that additional evidence needed to be gathered in the form of a realistic work assessment. The resulting supremacy of bureaucracy over professional medical judgments and the flaunting of published, objective standards is contrary to the spirit and letter of the Social Security Act. "The Secretary's practices have violated the requirements of her own regulations. Defendants have ignored the five step sequential evaluation process by presuming that the failure to meet listings at step three or four of the process automatically translates into a residual functional capacity to do unskilled work at steps four and five. The bureaucratic assessment of [476 U.S. 467, 475] residual functional capacity if it was done at all was reduced to a paper charade where the SSA physician completed a cursory report or checked off a form knowing the conclusion had to be that the claimant had the capacity for unskilled work. Medical experts demonstrated to the court that the symptoms and restrictions of the listings of impairments do not measure an individual's capacity for work or his or her ability to withstand the stress of even the least demanding work." Id., at 1124. [Footnote 6 The class was ultimately defined by the District Court after trial as consisting of: "All individuals residing in the State of New York who have applied for or received Title II and/or Title XVI benefits and who, between April 1, 1980 and May 15, 1983, were found by the New York Office of Disability Determinations to have a functional psychotic or functional nonpsychotic mental impairment which is severe (i. e., determined under 20 CFR 404.1520(c) or 416.930(c) to require evaluation under Appendix I of that Regulation), and whose applications for benefits have been denied or whose benefits have been or will be terminated, on the basis of defendants' determination that such persons are capable of substantial gainful activity." App. to Pet. for Cert. 65a. The class is estimated to include more than 50,000 New York residents. City of New York v. Heckler, 742 F.2d 729, 731 (CA2 1984). [Footnote 7 The District Court also ordered SSA to notify class members that their claims had been reopened, and to inform class members with an appeal pending before an ALJ that such claimants had the option of proceeding with their appeals upon the existing record rather than with the administrative reopening of their case. App. to Pet. for Cert. 65a-66a. [Footnote 8 The Court of Appeals affirmed the District Court's award of interim relief, and petitioners have raised in this Court no issue respecting that portion of the Court of Appeals' decision. [Footnote 9 As an alternative basis for jurisdiction, the Court of Appeals relied on 28 U.S.C. 1361 "in the event that, upon further review, it is determined that section 405(g) jurisdiction is unavailable to some of the class members." 742 F.2d, at 739. Because we conclude that jurisdiction under 405(g) is available, we do not reach the issue whether mandamus jurisdiction would have been proper in this context. [Footnote 10 We reject petitioners' contention that Salfi and Eldridge do not stand for the proposition that the 60-day requirement is not jurisdictional. In both cases, jurisdiction was premised on 405(g), and we noted that we did [476 U.S. 467, 479] not have to consider whether the 60-day requirement had been satisfied because the issue had not been timely raised below. Eldridge, 424 U.S., at 328 , n. 9; Salfi, 422 U.S., at 764 . Were the requirement jurisdictional, of course, the Court could not have declined to consider whether it had been satisfied in those cases. [Footnote 11 In Honda v. Clark, United States citizens or residents of Japanese descent sought to recover funds vested under the Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C. App. 1 et seq. Under that Act the United States seized the American assets of businesses owned by Japanese nationals. After the war a mechanism was established to return the assets to their rightful owners or the owners' creditors. The central problem in that case revolved around the fact that the petitioners failed to file a lawsuit challenging a schedule of payments within the applicable 60-day time period. This Court allowed the limitations period to be tolled during the pendency of related litigation because it was consistent with the statutory scheme and equitable principles to do so. 386 U.S., at 501 . [Footnote 12 SSA's regulations governing extensions of time for filing are based on considerations of fairness to claimants. Thus, the Secretary may grant an extension where a suit was not timely filed because of illness, accident, destruction of records, or mistake. Similarly, an extension may be granted where the claimant misunderstands the appeal process or is unable timely to collect necessary information, or where the Secretary undertook action that "misled" the claimant concerning his right to review. 20 CFR 404.911, 416.1411 (1985). The fairness concerns underlying the regulations support our application of equitable tolling in this case. [Footnote 13 As we explained in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974), statutory limitation periods are "`designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them'" (quoting Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348 -349 (1944)). [Footnote 14 Petitioners argue that when Congress in 1984 made comprehensive revisions in the disability program in the Social Security Disability Benefits Reform Act of 1984, Pub. L. 98-460, 98 Stat. 1794, it reaffirmed the finality requirement of 405(g). In 2(d) of the 1984 Act (98 Stat. 1797), Congress provided for remand to the Secretary, for redetermination under the new statutory medical improvement standard, of the claims of any individuals who were included in a class that had been certified in a case involving medical improvement, whether or not each individual class member had personally satisfied the jurisdictional requirements of 405(g). Congress took a different approach in cases involving individuals who have mental impairments. In 5(a) of the 1984 Act, 98 Stat. 1801, Congress directed the Secretary to develop new standards for the evaluation of mental impairments. It then provided in 5(c) (98 Stat. 1802) that any person who had sought benefits based on a mental impairment and who was found to be not disabled on or after March 1, 1981, could reapply to the Secretary and be reevaluated under these new standards. Thus, petitioners argue that these provisions demonstrate that Congress knew how to grant relief to disability claimants who have not satisfied the exhaustion requirement. We agree with the Court of Appeals' observation in its decision denying the petition for rehearing: "The Reform Act is remedial legislation, enacted principally to be of assistance to large numbers of persons whose disability benefits have been terminated. It would be a perverse view of Congressional intent if we were to infer from this beneficial legislation a determination on the part of Congress to deny other disability claimants the fruits of a judgment entered in their favor after a ruling that their claims had been unlawfully processed by the Secretary. What the Secretary is urging us to hold is that the Reform Act renders the finality and exhaustion requirements of section 405(g) more stringent than they were before the passage of the Act." City of New York v. Heckler, 755 F.2d 31, 33 (1985). [476 U.S. 467, 488]

liberal

public_entity

civil_rights

2001-076-01

United States Supreme Court HARRIS v. UNITED STATES(2002) No. 00-10666 Argued: March 25, 2002Decided: June 24, 2002 Petitioner, who sold illegal narcotics at his pawnshop with an unconcealed semiautomatic pistol at his side, was arrested for violating, inter alia, 18 U.S.C. §924(c)(1)(A), which provides in relevant part that a person who in relation to a drug trafficking crime uses or carries a firearm "shall, in addition to the punishment for such crime" "(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to ... not less than 7 years; and (iii) if the firearm is discharged, be sentenced to ... not less than 10 years." Because the Government proceeded on the assumption that the provision defines a single crime and that brandishing is a sentencing factor to be found by the judge following trial, the indictment said nothing about brandishing or subsection (ii), simply alleging the elements from the principal paragraph. Petitioner was convicted. When his presentence report recommended that he receive the 7-year minimum sentence, he objected, arguing that brandishing was an element of a separate statutory offense for which he was not indicted or convicted. At the sentencing hearing, the District Court overruled his objection, found that he had brandished the gun, and sentenced him to seven years in prison. Affirming, the Fourth Circuit rejected petitioner's statutory argument and found that McMillan v. Pennsylvania, 477 U.S. 79, foreclosed his argument that if brandishing is a sentencing factor, the statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466. In Apprendi, this Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum is, in effect, an element of the crime, which must be submitted to a jury, and proved beyond a reasonable doubt (and, in federal prosecutions, alleged in an indictment handed down by a grand jury). But 14 years earlier, McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the judge found that the defendant had possessed a firearm. Held:The judgment is affirmed. 243 F.3d 806, affirmed. Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, and IV, concluding: 1.As a matter of statutory interpretation, §924(c)(1)(A) defines a single offense, in which brandishing and discharging are sentencing factors to be found by the judge, not offense elements to be found by the jury. Pp.4-9. (a)The prohibition's structure suggests that brandishing and discharging are sentencing factors. Federal laws usually list all offense elements in a single sentence and separate the sentencing factors into subsections. Castillo v. United States, 530 U.S. 120, 125. The instant statute's lengthy principal paragraph lists the elements of a complete crime. Toward the end of the paragraph is the word "shall," which often divides offense-defining provisions from sentence-specifying ones. Jones v. United States, 526 U.S. 227, 233. And following "shall" are the separate subsections, which explain how defendants are to "be sentenced." Thus this Court can presume that the principal paragraph defines a single crime and its subsections identify sentencing factors. Pp.4-5. (b)As Jones illustrates, the statute's text might provide evidence to the contrary, but the critical textual clues here reinforce the single-offense interpretation. Brandishing has been singled out as a paradigmatic sentencing factor, Castillo, supra, at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging are factors that affect sentences for numerous crimes. The incremental changes in the minimum penalty at issue here are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge's consideration. Pp.5-7. (c)The canon of constitutional avoidance--which provides that when a statute is susceptible of two constructions, the Court must adopt the one that avoids grave and doubtful constitutional questions--plays no role here. The constitutional principle that petitioner says a single-offense interpretation of the statute would violate--that any fact increasing the statutory minimum sentence must be accorded the safeguards assigned to elements--was rejected in McMillan. Petitioner's suggestion that the canon be used to avoid overruling one of this Court's own precedents is novel and, given that McMillan was in place when §924(c)(1)(A) was enacted, unsound. Congress would have had no reason to believe that it was approaching the constitutional line by following the instruction this Court gave in McMillan. Pp.7-9. 2.Reaffirming McMillan and employing the approach outlined in that opinion, the Court concludes that §924(c)(1)(A)(ii) is constitutional. Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the Fifth and Sixth Amendments' requirements. Congress simply dictated the precise weight to be given to one traditional sentencing factor. McMillan, supra, at 89-90. Pp. 21-22. Justice Kennedy, joined by The Chief Justice, Justice O'Connor, and Justice Scalia, concluded in Part III that §924(c)(1)(A)(ii) is constitutional under McMillan, which remains sound authority after Apprendi. The Court will not overrule a precedent absent a special justification. The justification offered by petitioner is that Apprendi and McMillan cannot be reconciled. Those decisions are consistent, however, because there is a fundamental distinction between the factual findings at issue in those two cases. Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime by the Framers of the Bill of Rights. That cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding. This sort of fact is more like the facts judges have traditionally considered when exercising their discretion to choose a sentence within the range authorized by the jury's verdict--facts that the Constitution does not require to be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion--and rely upon judicial expertise--by requiring defendants to serve minimum terms after judges make certain factual findings. Legislatures have relied upon McMillan's holding, and there is no reason to overturn these statutes or cast uncertainty upon sentences imposed under them. Pp.9-22. Justice Breyer concluded that although Apprendi v. New Jersey, 530 U.S. 466, cannot easily be distinguished from this case in terms of logic, the Sixth Amendment permits judges to apply sentencing factors--whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). This does not mean to suggest approval of mandatory minimum sentences as a matter of policy. Mandatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of the Sentencing Guidelines. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created the Guidelines to eliminate. Applying Apprendi in this case would not, however, lead Congress to abolish, or to modify such statutes, and it would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors. The legal consequences of extending Apprendi are also seriously adverse, for doing so would diminish further Congress' otherwise broad constitutional authority to define crimes through specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases. Pp.1-4. Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C.J., and O'Connor, Scalia, and Breyer, JJ., joined, and an opinion with respect to Part III, in which Rehnquist, C.J., and O'Connor and Scalia, JJ., joined. O'Connor, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. WILLIAM JOSEPH HARRIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [June 24, 2002] Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which The Chief Justice, Justice O'Connor, and Justice Scalia join. Once more we consider the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence. Legislatures define crimes in terms of the facts that are their essential elements, and constitutional guarantees attach to these facts. In federal prosecutions, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" alleging all the elements of the crime. U.S. Const., Amdt. 5; see Hamling v. United States, 418 U.S. 87, 117 (1974). "In all criminal prosecutions," state and federal, "the accused shall enjoy the right to ... trial ... by an impartial jury," U.S. Const., Amdt. 6; see Duncan v. Louisiana, 391 U.S. 145, 149 (1968), at which the government must prove each element beyond a reasonable doubt, see Inre Winship, 397 U.S. 358, 364 (1970). Yet not all facts affecting the defendant's punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements, and are thus not subject to the Constitution's indictment, jury, and proof requirements. Some statutes also direct judges to give specific weight to certain facts when choosing the sentence. The statutes do not require these facts, sometimes referred to as sentencing factors, to be alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt. The Constitution permits legislatures to make the distinction between elements and sentencing factors, but it imposes some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling almost every relevant fact a sentencing factor. The Court described one limitation in this respect two Terms ago in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum," whether the statute calls it an element or a sentencing factor, "must be submitted to a jury, and proved beyond a reasonable doubt." Fourteen years before, in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court had declined to adopt a more restrictive constitutional rule. McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm. The principal question before us is whether McMillan stands after Apprendi. I Petitioner William Joseph Harris sold illegal narcotics out of his pawnshop with an unconcealed semiautomatic pistol at his side. He was later arrested for violating federal drug and firearms laws, including 18 U.S.C. §924(c)(1)(A). That statute provides in relevant part: "[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-- "(i) be sentenced to a term of imprisonment of not less than 5 years; "(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and "(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." The Government proceeded on the assumption that §924(c)(1)(A) defines a single crime and that brandishing is a sentencing factor to be considered by the judge after the trial. For this reason the indictment said nothing of brandishing and made no reference to subsection (ii). Instead, it simply alleged the elements from the statute's principal paragraph: that "during and in relation to a drug trafficking crime," petitioner had "knowingly carr[ied] a firearm." At a bench trial the United States District Court for the Middle District of North Carolina found petitioner guilty as charged. Following his conviction, the presentence report recommended that petitioner be given the 7-year minimum because he had brandished the gun. Petitioner objected, citing this Court's decision in Jones v. United States, 526 U.S. 227 (1999), and arguing that, as a matter of statutory interpretation, brandishing is an element of a separate offense, an offense for which he had not been indicted or tried. At the sentencing hearing the District Court overruled the objection, found by a preponderance of the evidence that petitioner had brandished the gun, and sentenced him to seven years in prison. In the Court of Appeals for the Fourth Circuit petitioner again pressed his statutory argument. He added that if brandishing is a sentencing factor as a statutory matter, the statute is unconstitutional in light of Apprendi--even though, as petitioner acknowledged, the judge's finding did not alter the maximum penalty to which he was exposed. Rejecting these arguments, the Court of Appeals affirmed. 243 F.3d 806 (2001). Like every other Court of Appeals to have addressed the question, it held that the statute makes brandishing a sentencing factor. Id., at 812; accord, United States v. Barton, 257 F.3d 433, 443 (CA5 2001); United States v. Carlson, 217 F.3d 986, 989 (CA8 2000); United States v. Pounds, 230 F.3d 1317, 1319 (CA11 2000). The court also held that the constitutional argument was foreclosed by McMillan. 243 F.3d, at 809. We granted certiorari, 534 U.S. 1064 (2001), and now affirm. II We must first answer a threshold question of statutory construction: Did Congress make brandishing an element or a sentencing factor in §924(c)(1)(A)? In the Government's view the text in question defines a single crime, and the facts in subsections (ii) and (iii) are considerations for the sentencing judge. Petitioner, on the other hand, contends that Congress meant the statute to define three different crimes. Subsection (ii), he says, creates a separate offense of which brandishing is an element. If petitioner is correct, he was neither indicted nor tried for that offense, and the 7-year minimum did not apply. So we begin our analysis by asking what §924(c)(1)(A) means. The statute does not say in so many words whether brandishing is an element or a sentencing factor, but the structure of the prohibition suggests it is the latter. Federal laws usually list all offense elements "in a single sentence" and separate the sentencing factors "into subsections." Castillo v. United States, 530 U.S. 120, 125 (2000). Here, §924(c)(1)(A) begins with a lengthy principal paragraph listing the elements of a complete crime--"the basic federal offense of using or carrying a gun during and in relation to" a violent crime or drug offense. Id., at 124. Toward the end of the paragraph is "the word `shall,' which often divides offense-defining provisions from those that specify sentences." Jones, 526 U.S., at 233. And following "shall" are the separate subsections, which explain how defendants are to "be sentenced." Subsection (i) sets a catchall minimum and "certainly adds no further element." Ibid. Subsections (ii) and (iii), in turn, increase the minimum penalty if certain facts are present, and those subsections do not repeat the elements from the principal paragraph. When a statute has this sort of structure, we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors. But even if a statute "has a look to it suggesting that the numbered subsections are only sentencing provisions," id., at 232, the text might provide compelling evidence to the contrary. This was illustrated by the Court's decision in Jones, in which the federal carjacking statute, which had a similar structure, was interpreted as setting out the elements of multiple offenses. The critical textual clues in this case, however, reinforce the single-offense interpretation implied by the statute's structure. Tradition and past congressional practice, for example, were perhaps the most important guideposts in Jones. The fact at issue there--serious bodily injury--is an element in numerous federal statutes, including two on which the carjacking statute was modeled; and the Jones Court doubted that Congress would have made this fact a sentencing factor in one isolated instance. Id., at 235-237; see also Castillo, supra, at 126-127; Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998). In contrast, there is no similar federal tradition of treating brandishing and discharging as offense elements. In Castillo v. United States, supra, the Court singled out brandishing as a paradigmatic sentencing factor: "Traditional sentencing factors often involve ... special features of the manner in which a basic crime was carried out (e.g., that the defendant ... brandished a gun)." Id., at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging affect the sentences for numerous federal crimes. See, e.g., United States Sentencing Commission, Guidelines Manual §§2A2.2(b)(2), 2B3.1(b)(2), 2B3.2(b)(3)(A), 2E2.1(b)(1), 2L1.1(b)(4) (Nov. 2001). Indeed, the Guidelines appear to have been the only antecedents for the statute's brandishing provision. The term "brandished" does not appear in any federal offense-defining provision save 18 U.S.C. §924(c)(1)(A), and did not appear there until 1998, when the statute was amended to take its current form. The numbered subsections were added then, describing, as sentencing factors often do, "special features of the manner in which" the statute's "basic crime" could be carried out. Castillo, supra, at 126. It thus seems likely that brandishing and discharging were meant to serve the same function under the statute as they do under the Guidelines. We might have had reason to question that inference if brandishing or discharging altered the defendant's punishment in a manner not usually associated with sentencing factors. Jones is again instructive. There the Court accorded great significance to the "steeply higher penalties" authorized by the carjacking statute's three subsections, which enhanced the defendant's maximum sentence from 15 years, to 25 years, to life--enhancements the Court doubted Congress would have made contingent upon judicial factfinding. 526 U.S., at 233; see also Castillo, supra, at 131; Almendarez-Torres, supra, at 235-236. The provisions before us now, however, have an effect on the defendant's sentence that is more consistent with traditional understandings about how sentencing factors operate; the required findings constrain, rather than extend, the sentencing judge's discretion. Section 924(c)(1)(A) does not authorize the judge to impose "steeply higher penalties"--or higher penalties at all--once the facts in question are found. Since the subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm. The incremental changes in the minimum--from 5 years, to 7, to 10--are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge's consideration. Nothing about the text or history of the statute rebuts the presumption drawn from its structure. Against the single-offense interpretation to which these considerations point, however, petitioner invokes the canon of constitutional avoidance. Under that doctrine, when "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). It is at least an open question, petitioner contends, whether the Fifth and Sixth Amendments require every fact increasing a federal defendant's minimum sentence to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. To avoid resolving that question (and possibly invalidating the statute), petitioner urges, we should read §924(c)(1)(A) as making brandishing an element of an aggravated federal crime. The avoidance canon played a role in Jones, for the subsections of the carjacking statute enhanced the maximum sentence, and a single-offense interpretation would have implicated constitutional questions later addressed--and resolved in the defendant's favor--by Apprendi. See Jones, 507 U.S. 292, 314, n.9 (1993), and petitioner's proposed rule--that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safeguards assigned to elements--was rejected 16 years ago in McMillan. Petitioner acknowledges as much but argues that recent developments cast doubt on McMillan's viability. To avoid deciding whether McMillan must be overruled, he says, we should construe the problem out of the statute. Petitioner's suggestion that we use the canon to avoid overruling one of our own precedents is novel and, given that McMillan was in place when §924(c)(1)(A) was enacted, unsound. The avoidance canon rests upon our "respect for Congress, which we assume legislates in the light of constitutional limitations." Rust v. Sullivan, 500 U.S. 173, 191 (1991). The statute at issue in this case was passed when McMillan provided the controlling instruction, and Congress would have had no reason to believe that it was approaching the constitutional line by following that instruction. We would not further the canon's goal of eliminating friction with our coordinate branch, moreover, if we alleviated our doubt about a constitutional premise we had supplied by adopting a strained reading of a statute that Congress had enacted in reliance on the premise. And if we stretched the text to avoid the question of McMillan's continuing vitality, the canon would embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed. We decline to adopt that approach. As the avoidance canon poses no obstacle and the interpretive circumstances point in a common direction, we conclude that, as a matter of statutory interpretation, §924(c)(1)(A) defines a single offense. The statute regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury. III Confident that the statute does just what McMillan said it could, we consider petitioner's argument that §924(c)(1)(A)(ii) is unconstitutional because McMillan is no longer sound authority. Stare decisis is not an "inexorable command," Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting), but the doctrine is "of fundamental importance to the rule of law," Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 494 (1987). Even in constitutional cases, in which stare decisis concerns are less pronounced, we will not overrule a precedent absent a "special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). The special justification petitioner offers is our decision in Apprendi, which, he says, cannot be reconciled with McMillan. Cf. Ring v. Arizona, post, at 22 (overruling Walton v. Arizona, 497 U.S. 639 (1990), because "Walton and Apprendi are irreconcilable"). We do not find the argument convincing. As we shall explain, McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime--and thus the domain of the jury--by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution. Though defining criminal conduct is a task generally "left to the legislative branch," Patterson v. New York, 432 U.S. 197, 210 (1977), Congress may not manipulate the definition of a crime in a way that relieves the Government of its constitutional obligations to charge each element in the indictment, submit each element to the jury, and prove each element beyond a reasonable doubt, Jones, supra, at 240-241; Mullaney v. Wilbur, 421 U.S. 684, 699 (1975). McMillan and Apprendi asked whether certain types of facts, though labeled sentencing factors by the legislature, were nevertheless "traditional elements" to which these constitutional safeguards were intended to apply. Patterson v. New York, supra, at 211, n.12. McMillan's answer stemmed from certain historical and doctrinal understandings about the role of the judge at sentencing. The mid-19th century produced a general shift in this country from criminal statutes "providing fixed-term sentences to those providing judges discretion within a permissible range." Apprendi, 404 U.S. 443, 446 (1972). The Court has recognized that this process is constitutional--and that the facts taken into consideration need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. See, e.g., United States v. Watts, 519 U.S. 148, 156 (1997) (per curiam); Nichols v. United States, 511 U.S. 738, 747 (1994); Williams v. New York, 337 U.S. 241, 246 (1949). As the Court reiterated in Jones: "It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution." 526 U.S., at 248. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. That proposition, coupled with another shift in prevailing sentencing practices, explains McMillan. In the latter part of the 20th century, many legislatures, dissatisfied with sentencing disparities among like offenders, implemented measures regulating judicial discretion. These systems maintained the statutory ranges and the judge's factfinding role but assigned a uniform weight to factors judges often relied upon when choosing a sentence. See, e.g., Payne v. Tennessee, 501 U.S. 808, 820 (1991). One example of reform, the kind addressed in McMillan, was mandatory minimum sentencing. The Pennsylvania Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982), imposed a minimum prison term of five years when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm while committing the crime of conviction. In sustaining the statute the McMillan Court placed considerable reliance on the similarity between the sentencing factor at issue and the facts judges contemplate when exercising their discretion within the statutory range. Given that the latter are not elements of the crime, the Court explained, neither was the former: "Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 `ups the ante' for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. ... Petitioners' claim that visible possession under the Pennsylvania statute is `really' an element of the offenses for which they are being punished ... would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, ... but it does not." 477 U.S., at 87-88 (footnote omitted). In response to the argument that the Act evaded the Constitution's procedural guarantees, the Court noted that the statute "simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor." Id., at 89-90. That reasoning still controls. If the facts judges consider when exercising their discretion within the statutory range are not elements, they do not become as much merely because legislatures require the judge to impose a minimum sentence when those facts are found--a sentence the judge could have imposed absent the finding. It does not matter, for the purposes of the constitutional analysis, that in statutes like the Pennsylvania Act the "State provides" that a fact "shall give rise both to a special stigma and to a special punishment." Id., at 103 (Stevens, J., dissenting). Judges choosing a sentence within the range do the same, and "[j]udges, it is sometimes necessary to remind ourselves, are part of the State." Apprendi, supra, at 498 (Scalia, J., concurring). These facts, though stigmatizing and punitive, have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime. This conclusion might be questioned if there were extensive historical evidence showing that facts increasing the defendant's minimum sentence (but not affecting the maximum) have, as a matter of course, been treated as elements. The evidence on this score, however, is lacking. Statutes like the Pennsylvania Act, which alter the minimum sentence without changing the maximum, were for the most part the product of the 20th century, when legislatures first asserted control over the sentencing judge's discretion. Courts at the founding (whose views might be relevant, given the contemporaneous adoption of the Bill of Rights, see Apprendi, 92 U.S. 214, 232 (1876) (Clifford, J., dissenting) (citing 1 J. Bishop, Law of Criminal Procedure §81, p.51 (2d ed. 1872)). This formulation includes facts that, as McMillan put it, "alte[r] the maximum penalty," 477 U.S., at 87, but it does not include facts triggering a mandatory minimum. The minimum may be imposed with or without the factual finding; the finding is by definition not "essential" to the defendant's punishment. McMillan was on firm historical ground, then, when it held that a legislature may specify the condition for a mandatory minimum without making the condition an element of the crime. The fact of visible firearm possession was more like the facts considered by judges when selecting a sentence within the statutory range--facts that, as the authorities from the 19th century confirm, have never been charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt: "[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose its mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him." Bishop, Criminal Procedure, §85, at 54. Since sentencing ranges came into use, defendants have not been able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the "heaviest punishment" they face if convicted. Ibid. Judges, in turn, have always considered uncharged "aggravating circumstances" that, while increasing the defendant's punishment, have not "swell[ed] the penalty above what the law has provided for the acts charged." Ibid. Because facts supporting a mandatory minimum fit squarely within that description, the legislature's choice to entrust them to the judge does not implicate the "competition ... between judge and jury over ... their respective roles," Jones, 526 U.S., at 245, that is the central concern of the Fifth and Sixth Amendments. At issue in Apprendi, by contrast, was a sentencing factor that did "swell the penalty above what the law has provided," Bishop, supra, §85, at 54, and thus functioned more like a "traditional elemen[t]." Patterson v. New York, 432 U.S., at 211, n.12. The defendant had been convicted of illegal possession of a firearm, an offense for which New Jersey law prescribed a maximum of 10 years in prison. See N.J. Stat. Ann. §§2C:39-4(a), 2C:43-6(a)(2) (1995). He was sentenced to 12 years, however, because a separate statute permitted an enhancement when the judge found, by a preponderance of the evidence, that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race." §2C:44-3(e) (Supp. 2001-2002). The Court held that the enhancement was unconstitutional. "[O]ur cases in this area, and the history upon which they rely," the Court observed, confirmed the constitutional principle first identified in Jones: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S., at 490. Those facts, Apprendi held, were what the Framers had in mind when they spoke of "crimes" and "criminal prosecutions" in the Fifth and Sixth Amendments: A crime was not alleged, and a criminal prosecution not complete, unless the indictment and the jury verdict included all the facts to which the legislature had attached the maximum punishment. Any "fact that ... exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone," the Court concluded, id., at 483, would have been, under the prevailing historical practice, an element of an aggravated offense. See id., at 479-481; see also id., at 501-518 (Thomas, J., concurring). Apprendi's conclusions do not undermine McMillan's. There was no comparable historical practice of submitting facts increasing the mandatory minimum to the jury, so the Apprendi rule did not extend to those facts. Indeed, the Court made clear that its holding did not affect McMillan at all: "We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict--a limitation identified in the McMillan opinion itself." 530 U.S., at 487, n.13. The sentencing factor in McMillan did not increase "the penalty for a crime beyond the prescribed statutory maximum," 530 U.S., at 490; nor did it, as the concurring opinions in Jones put it, "alter the congressionally prescribed range of penalties to which a criminal defendant is exposed," 526 U.S., at 253 (Scalia, J., concurring)). As the Apprendi Court observed, the McMillan finding merely required the judge to impose "a specific sentence within the range authorized by the jury's finding that the defendant [was] guilty." 530 U.S., at 494, n.19; see also Jones, supra, at 242 ("[T]he Winship issue [in McMillan] rose from a provision that a judge's finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed"). As its holding and the history on which it was based would suggest, the Apprendi Court's understanding of the Constitution is consistent with the holding in McMillan. Facts extending the sentence beyond the statutory maximum had traditionally been charged in the indictment and submitted to the jury, Apprendi said, because the function of the indictment and jury had been to authorize the State to impose punishment: "The evidence ... that punishment was, by law, tied to the offense ... and the evidence that American judges have exercised sentencing discretion within a legally prescribed range ... point to a single, consistent conclusion: The judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition `elements' of a separate legal offense." 530 U.S., at 483, n.10. The grand and petit juries thus form a "`strong and two-fold barrier ... between the liberties of the people and the prerogative of the [government].'" Duncan v. Louisiana, 391 U.S., at 151 (quoting W. Blackstone, Commentaries on the Laws of England 349 (T. Cooley ed. 1899)). Absent authorization from the trial jury--in the form of a finding, by proof beyond a reasonable doubt, of the facts warranting the extended sentence under the New Jersey statute--the State had no power to sentence the defendant to more than 10 years, the maximum "authorized by the jury's guilty verdict." Apprendi, 530 U.S., at 494. "[T]hose facts that determine the maximum sentence the law allows," then, are necessarily elements of the crime. Id., at 499 (Scalia, J., concurring). Yet once the jury finds all those facts, Apprendi says that the defendant has been convicted of the crime; the Fifth and Sixth Amendments have been observed; and the Government has been authorized to impose any sentence below the maximum. That is why, as Apprendi noted, "nothing in this history suggests that it is impermissible for judges to exercise discretion--taking into consideration various factors relating both to offense and offender--in imposing a judgment within the range." Id., at 481. That is also why, as McMillan noted, nothing in this history suggests that it is impermissible for judges to find facts that give rise to a mandatory minimum sentence below "the maximum penalty for the crime committed." 477 U.S., at 87-88. In both instances the judicial factfinding does not "expose a defendant to a punishment greater than that otherwise legally prescribed." Apprendi, supra, at 483, n.10. Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. When a judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries--and without contradicting Apprendi. Petitioner argues, however, that the concerns underlying Apprendi apply with equal or more force to facts increasing the defendant's minimum sentence. Those factual findings, he contends, often have a greater impact on the defendant than the findings at issue in Apprendi. This is so because when a fact increasing the statutory maximum is found, the judge may still impose a sentence far below that maximum; but when a fact increasing the minimum is found, the judge has no choice but to impose that minimum, even if he or she otherwise would have chosen a lower sentence. Cf. Almendarez-Torres, 523 U.S., at 244-245. Why, petitioner asks, would fairness not also require the latter sort of fact to be alleged in the indictment and found by the jury under a reasonable-doubt standard? The answer is that because it is beyond dispute that the judge's choice of sentences within the authorized range may be influenced by facts not considered by the jury, a factual finding's practical effect cannot by itself control the constitutional analysis. The Fifth and Sixth Amendments ensure that the defendant "will never get more punishment than he bargained for when he did the crime," but they do not promise that he will receive "anything less" than that. Apprendi, supra, at 498 (Scalia, J., concurring). If the grand jury has alleged, and the trial jury has found, all the facts necessary to impose the maximum, the barriers between government and defendant fall. The judge may select any sentence within the range, based on facts not alleged in the indictment or proved to the jury--even if those facts are specified by the legislature, and even if they persuade the judge to choose a much higher sentence than he or she otherwise would have imposed. That a fact affects the defendant's sentence, even dramatically so, does not by itself make it an element. In light of the foregoing, it is not surprising that the decisions for the Court in both Apprendi and Jones insisted that they were consistent with McMillan--and that a distinction could be drawn between facts increasing the defendant's minimum sentence and facts extending the sentence beyond the statutory maximum. See, e.g., Apprendi, supra, at 494, n.19 ("The term [sentencing factor] appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense"); Jones, 526 U.S., at 242 ("McMillan, then, recognizes a question under both the Due Process Clause of the Fourteenth Amendment and the jury guarantee of the Sixth: ... [M]ay judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?"); see also Almendarez-Torres, supra, at 256 (Scalia, J., dissenting) ("[N]o one can read McMillan ... without perceiving that the determinative element in our validation of the Pennsylvania statute was the fact that it merely limited the sentencing judge's discretion within the range of penalty already available, rather than substantially increasing the available sentence"). That distinction may continue to stand. The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. The finding in McMillan restrained the judge's power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be. Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion--and rely upon judicial expertise--by requiring defendants to serve minimum terms after judges make certain factual findings. It is critical not to abandon that understanding at this late date. Legislatures and their constituents have relied upon McMillan to exercise control over sentencing through dozens of statutes like the one the Court approved in that case. Congress and the States have conditioned mandatory minimum sentences upon judicial findings that, as here, a firearm was possessed, brandished, or discharged, Ala. Code §13A-5-6(a)(4) (1994); Kan. Stat. Ann. §21-4618 (1995); Minn. Stat. Ann. §609.11 (Supp. 2002); N.J. Stat. Ann. §§2C:43-6(c), 6(d) (1998); or among other examples, that the victim was over 60 years of age, 42 Pa. Cons. Stat. §9717(a) (1998); that the defendant possessed a certain quantity of drugs, Ill. Comp. Stat., ch. 730, §5/5-5-3(c)(2)(D) (2000); that the victim was related to the defendant, Alaska Stat. §12.55.125(b) (2000); and that the defendant was a repeat offender, Md. Ann. Code, Art. 27, §286 (Supp. 2000). We see no reason to overturn those statutes or cast uncertainty upon the sentences imposed under them. IV Reaffirming McMillan and employing the approach outlined in that case, we conclude that the federal provision at issue, 18 U.S.C. §924(c)(1)(A)(ii), is constitutional. Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress "simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor." McMillan, 477 U.S., at 89-90. That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e.g., Brief for Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n.16; cf. Almendarez-Torres, supra, at 245 (citing United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 26-34 (Aug. 1991)). These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other questions to Congress, the States, and the democratic processes. The judgment of the Court of Appeals is affirmed. It is so ordered. WILLIAM JOSEPH HARRIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [June 24, 2002] Justice O'Connor, concurring. Petitioner bases his statutory argument that brandishing must be interpreted as an offense element on Jones v. United States, 526 U.S. 227 (1999). He bases his constitutional argument that regardless of how the statute is interpreted, brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt on Apprendi v. New Jersey, 530 U.S. 466 (2000). As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner's arguments. Even assuming the validity of Jones and Apprendi, however, I agree that petitioner's arguments that brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt are unavailing. I therefore join Justice Kennedy's opinion in its entirety. WILLIAM JOSEPH HARRIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [June 24, 2002] Justice Breyer, concurring in part and concurring in the judgment. I cannot easily distinguish Apprendi v. New Jersey, 530 U.S. 466 (2000), from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction. At the same time, I continue to believe that the Sixth Amendment permits judges to apply sentencing factors--whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). And because I believe that extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences, I cannot yet accept its rule. I therefore join the Court's judgment, and I join its opinion to the extent that it holds that Apprendi does not apply to mandatory minimums. In saying this, I do not mean to suggest my approval of mandatory minimum sentences as a matter of policy. During the past two decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges, legislators, lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair administration of the criminal law, a matter of concern to judges and to legislators alike. See, e.g., Remarks of Chief Justice William H. Rehnquist, Nat. Symposium on Drugs and Violence in America 9-11 (June 18, 1993); Kennedy, Hearings before a Subcommittee of the House Committee on Appropriations, 103d Cong., 2d Sess., 29 (Mar. 9, 1994) (mandatory minimums are "imprudent, unwise and often an unjust mechanism for sentencing"); Breyer, Federal Sentencing Guidelines Revisited, 14 Crim. Justice 28 (Spring 1999); Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L.Rev. 185, 192-196 (1993); Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L.Rev. 199 (1993); Raeder, Rethinking Sentencing and Correctional Policy for Nonviolent Drug Offenders, 14 Crim. Justice 1, 53 (Summer 1999) (noting that the American Bar Association has opposed mandatory minimum sentences since 1974). Mandatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. See Melendez v. United States, 518 U.S. 120, 132-133 (1996) (Breyer, J., concurring in part and dissenting in part); cf. Koon v. United States, 518 U.S. 81, 95-96 (1996). They rarely reflect an effort to achieve sentencing proportionality--a key element of sentencing fairness that demands that the law punish a drug "kingpin" and a "mule" differently. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate. U.S. Sentencing Comm'n, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System i-iv, 31-33 (1991) (Sentencing Report); see also Schulhofer, supra, at 214-220. They rarely are based upon empirical study. See Rehnquist, supra, at 9-10; Hatch, supra, at 198. And there is evidence that they encourage subterfuge, leading to more frequent downward departures (on a random basis), thereby making them a comparatively ineffective means of guaranteeing tough sentences. See Sentencing Report 53. Applying Apprendi in this case would not, however, lead Congress to abolish, or to modify, mandatory minimum sentencing statutes. Rather, it would simply require the prosecutor to charge, and the jury to find beyond a reasonable doubt, the existence of the "factor," say, the amount of unlawful drugs, that triggers the mandatory minimum. In many cases, a defendant, claiming innocence and arguing, say, mistaken identity, will find it impossible simultaneously to argue to the jury that the prosecutor has overstated the drug amount. How, the jury might ask, could this "innocent" defendant know anything about that matter? The upshot is that in many such cases defendant and prosecutor will enter into a stipulation before trial as to drug amounts to be used at sentencing (if the jury finds the defendant guilty). To that extent, application of Apprendi would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors. And such consequences, when viewed through the prism of an open, fair sentencing system, are seriously adverse. The legal consequences of extending Apprendi to the mandatory minimum sentencing context are also seriously adverse. Doing so would diminish further Congress' otherwise broad constitutional authority to define crimes through the specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases. I have discussed these matters fully in my Apprendi dissent. See 526 U.S. 227, 254 (1999) (Kennedy, J., dissenting); Almendarez-Torres v. United States, 523 U.S. 224 (1998), I would not apply Apprendi in this case. I consequently join Parts I, II, and IV of the Court's opinion and concur in its judgment. WILLIAM JOSEPH HARRIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [June 24, 2002] Justice Thomas, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. The range of punishment to which petitioner William J. Harris was exposed turned on the fact that he brandished a firearm, a fact that was neither charged in his indictment nor proved at trial beyond a reasonable doubt. The United States Court of Appeals for the Fourth Circuit nonetheless held, in reliance on McMillan v. Pennsylvania, 477 U.S. 79 (1986), that the fact that Harris brandished a firearm was a mere sentencing factor to which no constitutional protections attach. 243 F.3d 806, 808-812 (2001). McMillan, however, conflicts with the Court's later decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), as the dissenting opinion in Apprendi recognized. See id., at 533 (O'Connor, J., dissenting). The Court's holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago. Given that considerations of stare decisis are at their nadir in cases involving procedural rules implicating fundamental constitutional protections afforded criminal defendants, I would reaffirm Apprendi, overrule McMillan, and reverse the Court of Appeals. I Harris was indicted for distributing marijuana in violation of 21 U.S.C. §841 and for carrying a firearm "in relation to" a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A). Harris pleaded guilty to distributing marijuana but disputed that he had carried a firearm "in relation to" a drug trafficking crime. The District Court disagreed,1 and he was convicted by the judge, having waived his right to trial by jury. Although the mandatory minimum prison sentence under §924(c)(1)(A)(i) is five years in prison, the presentence report relied on §924(c)(1)(A)(ii), which increases the mandatory minimum prison sentence to seven years when the firearm is brandished.2 At sentencing, the District Court acknowledged that it was a "close question" whether Harris "brandished" a firearm, and noted that "[t]he only thing that happened here is [that] he had [a gun] during the drug transaction." App. 231-232, 244-247. The District Court nonetheless found by a preponderance of the evidence that Harris had brandished a firearm and as a result sentenced him to the minimum mandatory sentence of seven years' imprisonment for the violation of §924(c)(1)(A). Relying on McMillan, the Court of Appeals affirmed the sentence and held as a matter of statutory interpretation that brandishing is a sentencing factor, not an element of the §924(c)(1)(A) offense. Accordingly, the Court of Appeals concluded that the allegation of brandishing a firearm did not need to be charged in the indictment or proved beyond a reasonable doubt in order for the 7-year mandatory minimum to be triggered. II The Court construes §924(c)(1)(A) to "defin[e] a single offense," ante, at 8, rather than the multiple offenses the Court found in a similarly structured statute in Jones v. United States, 526 U.S. 227 (1999).3 In reliance on McMillan, it then discounts the increasing mandatory minimum sentences set forth in the statutory provision as constitutionally irrelevant. In the plurality's view, any punishment less than the statutory maximum of life imprisonment for any violation of §924(c)(1)(A) avoids the single principle the Court now gleans from Apprendi: "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,' whether the statute calls it an element or a sentencing factor, `must be submitted to a jury, and proved beyond a reasonable doubt.'" Ante, at 2 (quoting Apprendi, supra, at 490). According to the plurality, the historical practices underlying the Court's decision in Apprendi with respect to penalties that exceed the statutory maximum do not support extension of Apprendi's rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny. A The Federal Constitution provides those "accused" in federal courts with specific rights, such as the right "to be informed of the nature and cause of the accusation," the right to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and the right to be tried by "an impartial jury of the State and district wherein the crime shall have been committed." Amdts. 5 and 6. Also, no Member of this Court disputes that due process requires that every fact necessary to constitute a crime must be found beyond a reasonable doubt by a jury if that right is not waived. See In re Winship, 397 U. S. 358, 364 (1970). As with Apprendi, this case thus turns on the seemingly simple question of what constitutes a "crime." This question cannot be answered by reference to statutory construction alone solely because the sentence does not exceed the statutory maximum. As I discussed at great length in Apprendi, the original understanding of what facts are elements of a crime was expansive: "[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact--of whatever sort, including the fact of a prior conviction--the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact ... that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact for that entitlement is an element." 530 U.S., at 501 (concurring opinion). The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under 18 U.S.C. §924(c)(1)(A). Without afinding that a defendant brandished or discharged a firearm, the penalty range for a conviction under §924(c)(1)(A)(i) is five years to life in prison. But with a finding that a defendant brandished a firearm, the penalty range becomes harsher, seven years to life imprisonment. §924(c)(1)(A)(ii). And if the court finds that a defendant discharged a firearm, the range becomes even more severe, 10 years to life. §924(c)(1)(A)(iii). Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi, supra, at 483, n.10 ("[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition `elements' of a separate legal offense"). I agree with the Court that a legislature is free to decree, within constitutional limits, which facts are elements that constitute a crime. See ante, at 2. But when the legislature provides that a particular fact shall give rise "`both to a special stigma and to a special punishment,'" ante, at 12 (plurality opinion) (quoting McMillan, 477 U.S., at 103 (Stevens, J., dissenting)), the constitutional consequences are clear. As the Court acknowledged in Apprendi, society has long recognized a necessary link between punishment and crime, 530 U.S., at 478 ("The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime"). This link makes a great deal of sense: Why, after all, would anyone care if they were convicted of murder, as opposed to manslaughter, but for the increased penalties for the former offense, which in turn reflect the greater moral opprobrium society attaches to the act? We made clear in Apprendi that if a statute "`annexes a higher degree of punishment'" based on certain circumstances, exposing a defendant to that higher degree of punishment requires that those circumstances be charged in the indictment and proved beyond a reasonable doubt. Id., at 480 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)). This constitutional limitation neither interferes with the legislature's ability to define statutory ranges of punishment nor calls into question judicial discretion to impose "judgment within the range prescribed by statute." Apprendi, 530 U.S., at 481. But it does protect the criminal defendant's constitutional right to know, ex ante, those circumstances that will determine the applicable range of punishment and to have those circumstances proved beyond a reasonable doubt: "If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not--at the moment the State is put to proof of those circumstances--be deprived of protections that have, until that point, unquestionably attached." Id., at 484. B The Court truncates this protection and holds that "facts, sometimes referred to as sentencing factors," do not need to be "alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt," ante, at 2, so long as they do not increase the penalty for the crime beyond the statutory maximum. This is so even if the fact alters the statutorily mandated sentencing range, by increasing the mandatory minimum sentence. But to say that is in effect to claim that the imposition of a 7-year,rather than a 5-year, mandatory minimum does not change the constitutionally relevant sentence range because, regardless, either sentence falls between five years and the statutory maximum of life, the longest sentence range available under the statute. This analysis is flawed precisely because the statute provides incremental sentencing ranges, in which the mandatory minimum sentence varies upward if a defendant "brandished" or "discharged" a weapon. As a matter of common sense, an increased mandatory minimum heightens the loss of liberty and represents the increased stigma society attaches to the offense. Consequently, facts that trigger an increased mandatory minimum sentence warrant constitutional safeguards. Actual sentencing practices appear to bolster this conclusion. The suggestion that a 7-year sentence could be imposed even without a finding that a defendant brandished a firearm ignores the fact that the sentence imposed when a defendant is found only to have "carried" a firearm "in relation to" a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years. Cf. United States Sentencing Commission, 2001 Datafile, USSCFY01, Table 1 (illustrating that almost all persons sentenced for violations of 18 U.S.C. §924(c)(1)(A) are sentenced to 5, 7, or 10 years' imprisonment). This is true even though anyone convicted of violating §924(c)(1)(A) is theoretically eligible to receive a sentence as severe as life imprisonment.4 Yet under the decision today, those key facts actually responsible for fixing a defendant's punishment need not be charged in an indictment or proved beyond a reasonable doubt. The incremental increase between five and seven years in prison may not seem so great in the abstract (of course it must seem quite different to a defendant actually being incarcerated). However, the constitutional analysis adopted by the plurality would hold equally true if the mandatory minimum for a violation of §924(c)(1) without brandishing was five years, but the mandatory minimum with brandishing was life imprisonment. The result must be the same because surely our fundamental constitutional principles cannot alter depending on degrees of sentencing severity. So long as it was clear that Congress intended for "brandishing" to be a sentencing factor, that fact would still neither have to be charged in the indictment nor proved beyond a reasonable doubt. But if this is the case, then Apprendi can easily be avoided by clever statutory drafting. It is true that Apprendi concerned a fact that increased the penalty for a crime beyond the prescribed statutory maximum, but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum: When a fact exposes a defendant to greater punishment than what is otherwise legally prescribed, that fact is "by definition [an] `elemen[t]' of a separate legal offense." 530 U.S., at 483, n.10. Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed. This is no less true because mandatory minimum sentences are a 20th-century phenomena. As the Government acknowledged at oral argument, this fact means only that historical practice is not directly dispositive of the question whether facts triggering mandatory minimums must be treated like elements. Tr. of Oral Arg. 47. The Court has not previously suggested that constitutional protection ends where legislative innovation or ingenuity begins. Looking to the principles that animated the decision in Apprendi and the bases for the historical practice upon which Apprendi rested (rather than to the historical pedigree of mandatory minimums), there are no logical grounds for treating facts triggering mandatory minimums any differently than facts that increase the statutory maximum. In either case the defendant cannot predict the judgment from the face of the felony, see 530 U.S., at 478-479, and the absolute statutory limits of his punishment change, constituting an increased penalty. In either case the defendant must be afforded the procedural protections of notice, a jury trial, and a heightened standard of proof with respect to the facts warranting exposure to a greater penalty. See id., at 490; Jones, 526 U.S., at 253 (Scalia, J., concurring). III McMillan rested on the premise that the "`applicability of the reasonable-doubt standard ... has always been dependent on how a State defines the offense that is charged in any given case.'" 432 U.S. 197, 211, n.12 (1977)). Thus, it cannot withstand the logic of Apprendi, at least with respect to facts for which the legislature has prescribed a new statutory sentencing range. McMillan broke from the "traditional understanding" of crime definition, a tradition that "continued well into the 20th century, at least until the middle of the century." Apprendi, supra, at 518 (Thomas, J., concurring). The Court in McMillan did not, therefore, acknowledge that the change in the prescribed sentence range upon the finding of particular facts changed the prescribed range of penalties in a constitutionally significant way. Rather, while recognizing applicable due process limits, it concluded that the mandatory minimum at issue did not increase the prescribed range of penalties but merely required the judge to impose a specific penalty "within the range already available to it." 477 U.S., at 87-88. As discussed, supra, at 6-8, this analysis is inherently flawed. Jones called into question, and Apprendi firmly limited, a related precept underlying McMillan: namely, the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. Although the plurality resurrects this principle, see ante, at 12, 18, it must do so in the face of the Court's contrary conclusion in Apprendi, which adopts the position taken by the dissent in McMillan: "[I]f a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a `fact necessary to constitute the crime' within the meaning of our holding in Inre Winship." 477 U.S., at 103 (Stevens, J., dissenting). See Apprendi, supra, at 483-484. Nor should stare decisis dictate the outcome in this case; the stare decisis effect of McMillan is considerably weakened for a variety of reasons. As an initial matter, where the Court has wrongly decided a constitutional question, the force of stare decisis is at its weakest. See Ring v. Arizona, post, at 22; Agostini v. Felton, 521 U.S. 203, 235 (1997). And while the relationship between punishment and the constitutional protections attached to the elements of a crime traces its roots back to the common law, McMillan was decided only 16 years ago.5 No Court of Appeals, let alone this Court, has held that Apprendi has retroactive effect. The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury. Tr. of Oral Arg. 42-42. Consequently, one is hard pressed to give credence to the plurality's suggestion that "[i]t is critical not to abandon" McMillan "at this late date." Ante, at 19. Rather, it is imperative that the Court maintain absolute fidelity to the protections of the individual afforded bythe notice, trial by jury, and beyond-a-reasonable-doubt requirements. Finally, before today, no one seriously believed that the Court's earlier decision in McMillan could coexist with the logical implications of the Court's later decisions in Apprendi and Jones. In both cases, the dissent said as much: "The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' Ante, at 490 (emphasis added) (quoting Jones, supra, at 252-253 (Stevens, J., concurring)). Second, the Court endorses the rule as restated in Justice Scalia's concurring opinion in Jones. See ante, at 490. There, Justice Scalia wrote: `[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed.' Jones, supra, at 253 (emphasis added). Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed--which, by definition, must include increases or alterations to either the minimum or maximum penalties--must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis." Apprendi, 530 U.S., at 533 (O'Connor, J., dissenting). See also Jones, 515 U.S. 506, 521 (1995). Further supporting the essential incompatibility of Apprendi and McMillan, Justice Breyer concurs in the judgment but not the entire opinion of the Court, recognizing that he "cannot easily distinguish Apprendi ... from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction." Ante, at 1 (Breyer, J., concurring in part and concurring in judgment). This leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today's holding,and at least one Member explicitly continues to rejectboth Apprendi and Jones. Ante, at 1 (O'Connor, J.,concurring). * * * "Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan," in Apprendi, "we reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding." 530 U. S., at 487, n.13. But that day has come, and adherence to stare decisis in this case would require infidelity to our constitutional values. Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in Apprendi, I respectfully dissent. FOOTNOTES Footnote 1 Harris owned a pawn shop and routinely wore a gun at work; the District Court accepted that it was Harris' ordinary practice to wear a gun whether or not he was selling small amounts of marijuana to his friends. The District Court, however, determined that the gun was carried "in relation to" a drug trafficking offense within the meaning of §924(c) because it was "unable to draw the distinction that if it is [carried] for a legitimate purpose, it cannot be for an illegitimate purpose." App. 163. Footnote 2 The presentence report recommended that Harris be given a term of imprisonment of zero to six months for the distribution charge. Footnote 3 See 18 U.S.C. §2119. Footnote 4 Indeed it is a certainty that in virtually every instance the sentence imposed for a §924(c)(1)(A) violation is tied directly to the applicable mandatory minimum. See United States Sentencing Commission, Guidelines Manual §2K2.4, comment., n.1 (Nov. 2001) (stating clearly that "the guideline sentence for a defendant convicted under 18 U.S.C. §924(c) . . . is the minimum term required by the relevant statute....A sentence above the minimum term . . . is an upward departure"). Footnote 5 Mandatory minimum sentence schemes are themselves phenomena of fairly recent vintage genesis. See ante, at 12; see also Apprendi v. New Jersey, 530 U.S. 466, 518 (2000) (Thomas, J., concurring) ("In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of `crime.' Today's decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante--the status quo that reflected the original meaning of the Fifth and Sixth Amendments").

conservative

public_entity

criminal_procedure

1996-032-01

United States Supreme Court UNITED STATES v. GONZALES et al.(1997) No. 95-1605 Argued: December 11, 1996Decided: March 3, 1997 All three respondents were convicted in New Mexico courts and sentenced to prison terms on state charges arising from the use of guns by two of them to hold up undercover officers during a drug sting operation. After they began to serve their state sentences, respondents were convicted on various drug and related federal charges connected to the sting operation, and of using firearms during those crimes in violation of 18 U.S.C. § 924(c). In ordering their imprisonment, the District Court directed that the portion of their federal sentences attributable to the drug convictions run concurrently with their state sentences, with the remaining 60 month sentences required by §924(c) to run consecutively to both. Among other rulings, the Tenth Circuit vacated the firearms sentences on the ground that they should have run concurrently with the state prison terms. The court found §924(c)'s language to be ambiguous, resorted to the legislative history, and held that a §924(c) sentence may run concurrently with a previously imposed, already operational state sentence, but not with another federal sentence. Held: Section §924(c)'s plain language--i.e., "the sentence . . . under this subsection [shall not] run concurrently with any other term of imprisonment" (emphasis added)--forbids a federal district court to direct that the section's mandatory 5 year firearms sentence run concurrently with any other prison term, whether state or federal. Read naturally, the section's word "any" has an expansive meaning that is not limited to federal sentences, and so must be interpreted as referring to all "term[s] of imprisonment," including those imposed by state courts. Cf., e.g., United States v. Alvarez Sanchez, 511 U.S. 350, 358 . Unlike the Tenth Circuit, this Court sees nothing remarkable (much less ambiguous) about Congress' decision, in drafting §924(c), toprohibit concurrent sentences instead of simply mandating consecutive ones. Moreover, given the straightforward statutory command, there is no reason to resort to legislative history. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 . Indeed, the legislative history excerpt relied upon by the Tenth Circuit only muddies the waters. Contrary to that court's interpretation, §924(c)'s prohibition applies only to the section's mandatory firearms sentence, and does not limit a district court's normal authority under §3584(a) to order that other federal sentences run concurrently with or consecutively to other state or federal prison terms. Pp. 3-10. 65 F. 3d 814, vacated and remanded. O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. U.S. Supreme Court No. 95-1605 UNITED STATES, PETITIONER v. MIGUEL GONZALES, ORLENIS HERNANDEZ DIAZ and MARIO PEREZ on writ of certiorari to the united states court of appeals for the tenth circuit [March 3, 1997] Justice O'Connor delivered the opinion of the Court. We are asked to decide whether a federal court may direct that a prison sentence under 18 U.S.C. § 924(c) run concurrently with a state imposed sentence, even though §924(c) provides that a sentence imposed under that statute "shall [not] . . . run concurrently with any other term of imprisonment." We hold that it may not. Respondents were arrested in a drug sting operation during which two of them pulled guns on undercover police officers. All three were convicted in New Mexico courts on charges arising from the hold up. The state courts sentenced them to prison terms ranging from 13 to 17 years. After they began to serve their state sentences, respondents were convicted in federal court of committing various drug offenses connected to the sting operation, and conspiring to do so, in violation of 21 U.S.C. §§ 841 and 846. They were also convicted of using firearms during and in relation to those drug trafficking crimes, in violation of 18 U.S.C. § 924(c). Respondents received sentences ranging from 120 to 147 months in prison, of which 60 months reflected the mandatory sentence required for their firearms convictions. Pursuant to §924(c), the District Court ordered that the portion of respondents' federal sentences attributable to the drug convictions run concurrently with their state sentences, with the remaining 60 months due to the firearms offenses to run consecutively to both. The Court of Appeals for the Tenth Circuit vacated respondents' sentences for the firearms violations, on the ground that the §924(c) sentences should have run concurrently with the state prison terms. 65 F. 3d 814 (1995). (The court also vacated the respondents' substantive drug convictions and dealt with various other sentencing issues not before us.) Although the Court of Appeals recognized that other circuits had uniformly "held that §924(c)'s plain language prohibits sentences imposed under that statute from running concurrently with state sentences," it nevertheless thought that "a literal reading of the statutory language would produce an absurd result." Id., at 819. Feeling obliged to "venture into the thicket of legislative history," id., at 820 (citations and internal quotation marks omitted), the court found a line in a Senate Committee Report indicating that " `the mandatory sentence under the revised subsection 924(c) [should] be served prior to the start of the sentence for the underlying or any other offense,' " ibid. (quoting S. Rep. No. 98-225, pp. 313-314 (1983) (hereinafter S. Rep.)) (emphasis deleted). If this statement were applied literally, respondents would have to serve first their state sentences, then their 5 year federal firearm sentences, and finally the sentences for their narcotics convictions--even though the narcotics sentences normally would have run concurrently with the state sentences, since they all arose out of the same criminal activity. 65 F. 3d, at 821. To avoid this irrational result, the court held that "§924(c)'s mandatory five year sentence may run concurrently with a previously imposed state sentence that a defendant has already begun to serve." Id., at 819. We granted certiorari, 518 U. S. ___, and now reverse. Our analysis begins, as always, with the statutory text. Section 924(c)(1) provides: "Whoever, during and in relation to any . . . drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime . . . , be sentenced to imprisonment for five years . . . . Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the . . . drug trafficking crime in which the firearm was used or carried." 18 U.S.C. § 924(c)(1) (emphasis added). The question we face is whether the phrase "any other term of imprisonment" "means what it says, or whether it should be limited to some subset" of prison sentences, Maine v. Thiboutot, 448 U.S. 1, 4 (1980)--namely, only federal sentences. Read naturally, the word "any" has an expansive meaning, that is, "one or some indiscriminately of whatever kind." Webster's Third New International Dictionary 97 (1976). Congress did not add any language limiting the breadth of that word, and so we must read §924(c) as referring to all "term[s] of imprisonment," including those imposed by state courts. Cf. United States v. Alvarez Sanchez, 511 U.S. 350, 358 (1994) (noting that statute referring to "any law enforcement officer" includes "federal, state, or local" officers); Collector v. Hubbard, 12 Wall. 1, 15 (1871) (stating "it is quite clear" that a statute prohibiting the filing of suit "in any court" "includes the State courts as well as the Federal courts," because "there is not a word in the[statute] tending to show that the words `in any court' are not used in their ordinary sense"). There is no basis in the text for limiting §924(c) to federal sentences. In his dissenting opinion, Justice Stevens suggests that the word "any" as used in the first sentence of §924(c) "unquestionably has the meaning `any federal.' " Post, at 3. In that first sentence, however, Congress explicitly limited the scope of the phrase "any crime of violence or drug trafficking crime" to those "for which [a defendant] may be prosecuted in a court of the United States." Given that Congress expressly limited the phrase "any crime" to only federal crimes, we find it significant that no similar restriction modifies the phrase "any other term of imprisonment," which appears only two sentences later and is at issue in this case. See Russello v. United States, 464 U.S. 16, 23 (1983) (" `Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion' "). The Court of Appeals also found ambiguity in Congress' decision, in drafting §924(c), to prohibit concur rent sentences instead of simply mandating consecutive sentences. 65 F. 3d, at 820. Unlike the lower court, however, we see nothing remarkable (much less ambiguous) about Congress' choice of words. Because consecutive and concurrent sentences are exact opposites, Congress implicitly required one when it prohibited the other. This "ambiguity" is, in any event, beside the point because this phraseology has no bearing on whether Congress meant §924(c) sentences to run consecutively only to other federal terms of imprisonment. Given the straightforward statutory command, there is no reason to resort to legislative history. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992). Indeed, far from clarifying the statute, the legislative history only muddies the waters. The excerpt from the Senate Report accompanying the 1984 amendment to §924(c), relied upon by the Court of Appeals, reads: "[T]he Committee intends that the mandatory sentence under the revised subsection 924(c) be served prior to the start of the sentence for the underlying or any other offense." S. Rep., at 313-314. This snippet of legislative history injects into §924(c) an entirely new idea--that a defendant must serve the five year prison term for his firearms conviction before any other sentences. This added requirement, however, is "in no way anchored in the text of the statute." Shannon v. United States, 512 U.S. 573, 583 (1994). The Court of Appeals was troubled that this rule might lead to irrational results. Normally, a district court has authority to decide whether federal prison terms should run concurrently with or consecutively to other prison sentences. 18 U.S.C. § 3584(a) (vesting power in district court to run most prison terms either concurrently or consecutively); United States Sentencing Commission, Guidelines Manual §5G1.3 (Nov. 1995) (USSG) (guiding court's discretion under §3584(a)). If the prison terms for respondents' other federal sentences could not begin until after their §924(c) terms were completed, however, the district court would effectively be stripped of its statutory power to decide whether the sentences for the underlying narcotics offenses should run concurrently with respondents' state terms of imprisonment. 65 F. 3d, at 822. The court observed that such a rule could lead to dramatically higher sentences, particularly for the respondents in this case. Perez, for example, is already serving a 17 year state prison term for his role in the hold up. Normally, his 7.25 year federal sentence for narcotics possession would run concurrently with that state term under USSG §5G1.3(b); his 5 year firearm sentence under §924(c) would follow both,for a total of 22 years in prison. If he must serve his federal narcotics sentence after his 5-year firearms sentence, however, he would face a total of 29.25 years in prison. 65 F. 3d, at 821. Seeking to avoid this conflict between §924(c) (as reinterpreted in light of its legislative history) and §3584(a), the Court of Appeals held that §924(c) only prohibited running federal terms of imprisonment concurrently. Ibid. It also reasoned that such a narrow reading was necessary because "there is no way in which a later sentencing federal court can cause the mandatory 5 year §924(c) sentence to be served before a state sentence that is already being served." Ibid. We see three flaws in this reasoning. First, the statutory texts of §§924(c) and 3584(a), unvarnished by legislative history, are entirely consistent. Section 924(c) specifies only that a court must not run a firearms sentence concurrently with other prison terms. It leaves plenty of room for a court to run other sentences-- whether for state or federal offenses--concurrently with one another pursuant to §3584(a) and USSG §5G1.3. The statutes clash only if we engraft onto §924(c) a requirement found only in a single sentence buried in the legislative history: that the firearms sentence must run first. We therefore follow the text, rather than the legislative history, of §924(c). By disregarding the suggestion that a district court must specify that a sentence for a firearms conviction be served before other sentences, we give full meaning to the texts of both §§924(c) and 3584(a). See United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820) (Marshall, C. J.) ("Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest"). Second, even if we ignored the plain language of §924(c) and required courts to list the order in which a defendant must serve the sentences for different convictions, we would thereby create a rule that is superfluous in light of 18 U.S.C. § 3584(c). That statute instructs the Bureau of Prisons to treat multiple terms of imprisonment, whether imposed concurrently or consecutively, "for administrative purposes as a single, aggregate term of imprisonment." Ibid. As a practical matter, then, it makes no difference whether a court specifies the sequence in which each portion of an aggregate sentence must be served. We will not impose on sentencing courts new duties that, in view of other statutory commands, will be effectively meaningless. Third, the Court of Appeals' solution--to allow §924(c) prison terms to run concurrently with state sentences-- does not eliminate any anomaly that arises when a firearms sentence must run "first." Although it is clear that a prison term under §924(c) cannot possibly run before an earlier imposed state prison term, the same holds true when a prisoner is already serving a federal sentence. See §3585(a) (providing that a federal prison term commences when the defendant is received into custody or voluntarily arrives to begin serving the sentence). Because it is impossible to start a §924(c) sentence before any prison term that the prisoner is already serving, whether imposed by a state or federal court, limiting the phrase "any other term of imprisonment" to state sentences does not get rid of the problem. Thus, we think that the Court of Appeals both invented the problem and devised the wrong solution. Justice Breyer questions, in dissent, whether Congress wanted to impose a §924(c) sentence on a defendant who is already serving a prison term pursuant to a virtually identical state sentencing enhancement statute. Post, at 2. A federal court could not (for double jeopardy reasons) sentence a person to twoconsecutive federal prison terms for a single violation of a federal criminal statute, such as §924(c). If Congress cannot impose two consecutive federal §924(c) sentences, the dissent argues, it is unlikely that Congress would have wanted to stack a §924(c) sentence onto a prison term under a virtually identical state firearms enhancement. Post, at 2. As we have already observed, however, the straightforward language of §924(c) leaves no room to speculate about congressional intent. See supra, at 3-4. The statute speaks of "any term of imprisonment" without limitation, and there is no intimation that Congress meant §924(c) sentences to run consecutively only to certain types of prison terms. District courts have some discretion under the Sentencing Guidelines, of course, in cases where related offenses are prosecuted in multiple proceedings, to establish sentences "with an eye toward having such punishments approximate the total penalty that would have been imposed had the sentences for the different offenses been imposed at the same time . . . ." Witte v. United States, 515 U. S. ___, ___ (1995) (slip op., at 15) (discussing USSG §5G1.3). See post, at 1-2 (Breyer, J., dissenting). When Congress enacted §924(c)'s consecutive sentencing provision, however, it cabined the sentencing discretion of district courts in a single circumstance: when a defendant violates §924(c), his sentencing enhancement under that statute must run consecutively to all other prison terms. Given this clear legislative directive, it is not for the courts to carve out statutory exceptions based on judicial perceptions of good sentencing policy. Other language in §924(c) reinforces our conclusion. In 1984, Congress amended §924(c) so that its sentencing enhancement would apply regardless of whether the underlying felony statute "provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." Comprehensive CrimeControl Act of 1984, Pub. L. 98-473, §1005(a), 98 Stat. 2138-2139. Congress thus repudiated the result we reached in Busic v. United States, 446 U.S. 398 (1980), in which we held that "prosecution and enhanced sentencing under §924(c) is simply not permissible where the predicate felony statute contains its own enhancement provision," irrespective of whether the Government had actually sought an enhancement under that predicate statute. Id., at 404; see also Simpson v. United States, 435 U.S. 6, 15 (1978) (holding that a federal court may not impose sentences under both §924(c) and the weapon enhancement under the armed bank robbery statute, 18 U.S.C. § 2113 based on a single criminal transaction). Our holdings in these cases were based on our conclusion that the unamended text of §924(c) left us with little "more than a guess" as to how Congress meant to mesh that statute with the sentencing enhancement provisions scattered throughout the federal criminal code. Simpson, supra, at 15; Busic, supra, at 405. The 1984 amendment, however, eliminated these ambiguities. At that point, Congress made clear its desire to run §924(c) enhancements consecutively to all other prison terms, regardless of whether they were imposed under firearms enhancement statutes similar to §924(c). We therefore cannot agree with Justice Breyer's contention that our interpretation of §924(c) distinguishes between "those subject to undischarged state, and those subject to undischarged federal, sentences." Post, at 2. Both sorts of defendants face sentences for their other convictions that run concurrently with or consecutively to each other according to normal sentencing principles, plus an enhancement under §924(c). In short, in light of the 1984 amendment, we think that Congress has foreclosed the dissent's argument that §924(c) covers only federal sentences. Finally, we pause to comment on Justice Stevens'concern over how today's decision might affect other cases where "the state trial follows the federal trial and the state judge imposes a concurrent sentence" that might be viewed as inconsistent with §924(c). Post, at 2. That, of course, was not the sequence in which the respondents were sentenced in this case, and so we have no occasion to decide whether a later sentencing state court is bound to order its sentence to run consecutively to the §924(c) term of imprisonment. See ibid. All that is before us today is the authority of a later sentencing federal court to impose a consecutive sentence under §924(c). We are hesitant to reach beyond the facts of this case to decide a question that is not squarely presented for our review. In sum, we hold that the plain language of 18 U.S.C. § 924(c) forbids a federal district court to direct that a term of imprisonment under that statute run concurrently with any other term of imprisonment, whether state or federal. The statute does not, however, limit the court's authority to order that other federal sentences run concurrently with or consecutively to other prison terms--state or federal--under §3584. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. U.S. Supreme Court No. 95-1605 UNITED STATES, PETITIONER v. MIGUEL GONZALES, ORLENIS HERNANDEZ DIAZ and MARIO PEREZ on writ of certiorari to the united states court of appeals for the tenth circuit [March 3, 1997] Justice Stevens , with whom Justice Breyer joins, These cases arose out of a criminal enterprise that violated both New Mexico law and federal law and gave rise to both state and federal prosecutions. They raise a narrow but important question concerning the scope of the prohibition against concurrent sentences contained in 18 U.S.C. § 924(c)(1). As the Government reads that provision, it prohibits the §924(c) sentence from running concurrently with a state sentence that has already been imposed, but permits concurrent state and federal sentences when the federal prosecution precedes the state prosecution. 1 Thus the length of the total term of imprisonment--including both the state sentence and the federal sentence--is determined, in part, by the happenstance of which case is tried first. Read literally, however, the text of §924(c)(1) would avoid this anomalous result. Because the text broadly prohibits the §924(c) sentence from running "concurrently with any other term of imprisonment" regardless of whether that other term is imposed before or afterthe federal sentence, if the statute is read literally, it would require state judges to make any state term of imprisonment run consecutively to the §924(c) sentence. Alternatively, if the state trial follows the federal trial and the state judge imposes a concurrent sentence (because she does not read §924(c) as having any applicability to state sentences), the literal text would require the federal authorities to suspend the §924(c) sentence until the state sentence has been served. By relying so heavily on pure textual analysis, the Court's opinion would appear to dictate this result. Like the Government, however, I do not think the statute can reasonably be interpreted as containing any command to state sentencing judges or as requiring the suspension of any federal sentences when concurrent state sentences are later imposed. Thus, common sense requires us to reject a purely literal reading of the text. The question that then arises is which is the better of two plausible nonliteral readings. Should the term "any other term of imprisonment" be narrowed by reading it to cover only "any other term of imprisonment that has already been imposed," as the Government argues, or "any other federal term of imprisonment," as the respondent contends? For three reasons, I think it more likely that Congress intended the latter interpretation. First, it borders on the irrational to assume that Congress would actually intend the severity of the defendant's punishment in a case of this kind to turn on the happenstance of whether the state or the federal prosecution was concluded first. The defendant's reading of the statute avoids that anomaly. Second, when §924(c) was amended in 1970 to prohibit concurrent sentences, see Title II, Omnibus Crime Control Act of 1970, 84 Stat. 1889, this prohibition applied only to the federal sentence imposed for the underlying offense. When Congress amended the statute in 1984 to broaden the prohibition beyond the underlying offense, it said nothing about state sentences; if Congress had intended the amendment to apply to state as well as federal sentences, I think there would have been some mention of this important change in the legislative history. 2 Furthermore, the 1984 amendment was part of a general revision of sentencing laws that sought to achieve more uniformity and predictability in federal sentencing. See Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U.S.C. § 3551 et seq. The anomaly that the Government's reading of §924(c) authorizes is inconsistent with the basic uniformity theme of the 1984 legislation. Finally, the context in which the relevant language appears is concerned entirely with federal sentencing. Indeed, the word "any" as used earlier in the section unquestionably has the meaning "any federal." 3 Given the Government's recognition of the fact that a completely literal reading of §924(c)(1) is untenable, and the further fact that the Court offers nothing more than the dictionary definition of the word "any" to support its result, I think the wiser course is to interpret that word in the prohibition against concurrent sentences as having the same meaning as when the same word is first used in the statute. Accordingly, I respectfully dissent. Footnotes [Footnote 1 Reply Brief for United States 10-11; Tr. of Oral Arg. 6-10. [Footnote 2 "In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night." Harrison v. PPG Industries, Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J. dissenting). [Footnote 3 In the first sentence of §924(c)(1) the word "any" is expressly confined to federal prosecutions. When the word is used a second time to describe "any other provision of law," it is again quite obvious that it embraces only other provisions of federal law even though that limitation is implicit rather than explicit. Nowhere in §924(c) is there any explicit reference to state law or state sentences.

conservative

person

criminal_procedure

1980-138-01

United States Supreme Court LEHMAN v. NAKSHIAN(1981) No. 80-242 Argued: March 31, 1981Decided: June 26, 1981 The Age Discrimination in Employment Act of 1967 (ADEA or Act) was amended in 1974 to extend to federal employees the Act's protection of older workers against discrimination in the workplace based on age. Section 15 (c) of the Act provides that any aggrieved federal employee "may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes" of the Act. Respondent federal employee brought suit in Federal District Court against the Secretary of the Navy under 15 (c), alleging violations of the Act and demanding a jury trial. The District Court ruled, over the Secretary's objection, that respondent was entitled to a jury trial. On an interlocutory appeal, the Court of Appeals affirmed. Held: Respondent was not entitled to a jury trial. Pp. 160-169. (a) Where Congress waives the Government's immunity from suit, as it has in the ADEA, the plaintiff has a right to a trial by jury only where Congress has affirmatively and unambiguously granted that right by statute. Pp. 160-161. (b) Congress has not done so here. Neither the provision in 15 (c) for federal employer cases to be brought in federal district courts rather than the Court of Claims, nor the use of the word "legal" in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. Lorillard v. Pons, 434 U.S. 575 , distinguished. Section 15 (c) contrasts with 7 (c) of the Act, which expressly provides for jury trials in actions against private employers and state and local governments. Moreover, in extending the Act to cover federal employees, Congress based the provision not on the Fair Labor Standards Act as was 7, but on Title VII of the Civil Rights Act of 1964, where, unlike the FLSA, there was no right to trial by jury. Pp. 162-165. (c) The legislative history no more supports a holding that respondent has a right to a jury trial than does the statutory language itself. Pp. 165-168. 202 U.S. App. D.C. 59, 628 F.2d 59, reversed. STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed [453 U.S. 156, 157] a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 169. Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Geller, Robert E. Kopp, and Michael Jay Singer. Patricia J. Barry argued the cause and filed a brief for respondent. * [Footnote * Briefs of amici curiae urging affirmance were filed by Mary E. Jacksteit for the American Federation of Government Employees (AFL-CIO); and by Congressman Claude Pepper, pro se, and Edward F. Howard for Mr. Pepper et al. JUSTICE STEWART delivered the opinion of the Court. The question presented by this case is whether a plaintiff in an action against the United States under 15 (c) of the Age Discrimination in Employment Act is entitled to trial by jury. I The 1974 amendments to the Age Discrimination in Employment Act of 1967 1 added a new 15, 2 which brought the Federal Government within the scope of the Act for the first time. Section 15 (a) 3 prohibits the Federal Government from discrimination based on age in most of its civilian employment decisions concerning persons over 40 years of age. Section 15 (b) 4 provides that enforcement of 15 (a) [453 U.S. 156, 158] in most agencies, including military departments, is the responsibility of the Equal Employment Opportunity Commission. The Commission is directed to "issue such rules, regulations, orders and instructions as [the Commission] deems necessary and appropriate" to carry out that responsibility. Section 15 (c) 5 provides: "Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act." 88 Stat. 75. In 1978, respondent Alice Nakshian, who was then a 62-year-old civilian employee of the United States Department of the Navy, brought an age discrimination suit against the Navy under 15 (c). She requested a jury trial. The defendant moved to strike the request, and the District Court denied the motion. Nakshian v. Claytor, 481 F. Supp. 159 (DC). The court stressed that the "legal or equitable relief" language used by Congress to establish a right to sue the Federal Government for age discrimination was identical to the language Congress had previously used in 7 (c) of the Act 6 to authorize private ADEA suits. That language, [453 U.S. 156, 159] the District Court said, was an important basis for this Court's holding in Lorillard v. Pons, 434 U.S. 575 , that 7 (c) permits jury trials in private suits under the Act. The court stated that "if Congress had intended its consent to ADEA suits [against the Government] to be limited to non-jury trials, it could have easily said as much." 481 F. Supp., at 161. Recognizing that as a result of 1978 amendments to the ADEA 7 (c) (2) expressly confers a right to jury trial, whereas no such language exists in 15, 7 481 F. Supp., at 161, the court found no "explicit refusal" by Congress to grant the right to jury trial against the Government, and noted that the legislative history of the 1978 amendments spoke in general terms about a right to jury trial in ADEA suits. On interlocutory appeal under 28 U.S.C. 1292 (b), a divided panel of the Court of Appeals affirmed. Nakshian v. Claytor, 202 U.S. App. D.C. 59, 628 F.2d 59. The appellate court rejected the Secretary's argument that a plaintiff is entitled to trial by jury in a suit against the United States only when such a trial has been expressly authorized. Instead, the court viewed the question as "an ordinary question of statutory interpretation," and found sufficient evidence of legislative intent to provide for trial by jury in cases such as this. Noting that Congress had conferred jurisdiction over ADEA suits upon the federal district courts, rather than the Court of Claims, the Court of Appeals concluded that "`absent a provision as to the method of trial, a grant of jurisdiction to a district court as a court of law carries with it a right to jury trial.'" Id., at 63, 628 F.2d, at 63 (quoting 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice § 38.32 2., p. 38-236 (1979) (footnotes omitted)). The Court of Appeals also adopted the District Court's view of the "legal . . . relief" language in 15 (c). Further, it was the court's view that the existence of the explicit statutory right to jury trial in suits against private employers does not [453 U.S. 156, 160] negate the existence of a right to jury trial in suits against the Government, since the provision for jury trials in private suits was added only to resolve a conflict in the Courts of Appeals on that issue and to confirm the correctness of this Court's decision in the Lorillard case. We granted certiorari to consider the issue presented. Sub nom. Hildalgo v. Nakshian, 449 U.S. 1009 . II It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government. In Galloway v. United States, 319 U.S. 372, 388 -389, the Court observed (footnotes omitted): "The suit is one to enforce a monetary claim against the United States. It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign. Whatever force the Amendment has therefore is derived because Congress, in the legislation cited, has made it applicable." See also Glidden Co. v. Zdanok, 370 U.S. 530, 572 ; McElrath v. United States, 102 U.S. 426, 440 . Moreover, the Court has recognized the general principle that "the United States, as sovereign, `is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399 , quoting United States v. Sherwood, 312 U.S. 584, 586 . See also United States v. Mitchell, 445 U.S. 535, 538 . Thus, if Congress waives the Government's immunity from suit, as it has in the ADEA, 29 U.S.C. 633a (1976 ed. and Supp. III), the plaintiff has a right to a trial by jury only where that right is one of "the terms of [the Government's] consent to be sued." Testan, supra, at 399. Like a waiver of immunity itself, which must be "unequivocally expressed," United States v. Mitchell, [453 U.S. 156, 161] supra, at 538, quoting United States v. King, 395 U.S. 1, 4 , "this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276 . See also United States v. Kubrick, 444 U.S. 111, 117 -118; United States v. Sherwood, supra, at 590-591. When Congress has waived the sovereign immunity of the United States, it has almost always conditioned that waiver upon a plaintiff's relinquishing any claim to a jury trial. Jury trials, for example, have not been made available in the Court of Claims for the broad range of cases within its jurisdiction under 28 U.S.C. 1491 - i. e., all claims against the United States "founded either upon the Constitution, or any Act of Congress, . . . or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." See Glidden Co., supra. And there is no jury trial right in this same range of cases when the federal district courts have concurrent jurisdiction. See 28 U.S.C. 1346 (a) (2) and 2402. Finally, in tort actions against the United States, see 28 U.S.C. 1346 (b), Congress has similarly provided that trials shall be to the court without a jury. 28 U.S.C. 2402. 8 [453 U.S. 156, 162] The appropriate inquiry, therefore, is whether Congress clearly and unequivocally departed from its usual practice in this area, and granted a right to trial by jury when it amended the ADEA. 9 A Section 15 of the ADEA, 29 U.S.C. 633a (1976 ed. and Supp. III), prohibits age discrimination in federal employment. Section 15 (c) provides the means for judicial enforcement of this guarantee: any person aggrieved "may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes" of the Act. Section 15 contrasts with 7 (c) of the Act, 29 U.S.C. 626 (c) (1976 ed., Supp. III), which authorizes civil actions against private employers and state and local governments, and which expressly provides for jury trials. Congress accordingly demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very "legislation cited." Galloway, supra, at 389. But in 15 it failed explicitly to do so. 10 See [453 U.S. 156, 163] Fedorenko v. United States, 449 U.S. 490, 512 -513; cf. Monroe v. Standard Oil Co., 452 U.S. 549, 561 . The respondent infers statutory intent from the language in 15 (c) providing for the award of "legal or equitable relief," relying on Lorillard v. Pons, 434 U.S. 575 , for the proposition that the authorization of "legal" relief supports a statutory jury trial right. But Lorillard has no application in this context. In the first place, the word "legal" cannot be deemed to be what the Lorillard Court described as "a term of art" with respect to the availability of jury trials in cases where the defendant is the Federal Government. In Lorillard, the authorization for the award of "legal" relief was significant largely because of the presence of a constitutional question. The Court observed that where legal relief is granted in litigation between private parties, the Seventh Amendment guarantees the right to a jury, and reasoned that Congress must have been aware of the significance of the word "legal" in that context. But the Seventh Amendment has no application in actions at law against the Government, as Congress and this Court have always recognized. Thus no particular significance can be attributed to the word "legal" in 15 (c). Moreover, another basis of the decision in Lorillard was that when Congress chose to incorporate the enforcement scheme of the Fair Labor Standards Act (FLSA) into 7 of the ADEA, it adopted in ADEA the FLSA practice of making jury trials available. 434 U.S., at 580 -583. Again, that reasoning has no relevance to this case, because Congress did not incorporate the FLSA enforcement scheme into 15. See 29 U.S.C. 633a (f) (1976 ed., Supp. III). Rather, 15 (a) and (b) are patterned after 717 (a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub. L. 92-261, 86 Stat. 111-112, which extend the protection of [453 U.S. 156, 164] Title VII to federal employees. 42 U.S.C. 2000e-16 (a) and (b). See 118 Cong. Rec. 24397 (1972) (remarks of Sen. Bentsen, principal sponsor of 15 of ADEA). And, of course, in contrast to the FLSA, 11 there is no right to trial by jury in cases arising under Title VII. See Lorillard, supra, at 583-584; Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 375 , and n. 19. The respondent also infers a right to trial by jury from the fact that Congress conferred jurisdiction over ADEA suits upon the federal district courts, where jury trials are ordinarily available, rather than upon the Court of Claims, where they are not. Not only is there little logical support for this inference, but the legislative history offers no support for it either. 12 Moreover, Rule 38 (a) of the Federal Rules of Civil Procedure provides that the right to a jury trial "as declared by the Seventh Amendment to the Constitution or as given [453 U.S. 156, 165] by a statute of the United States shall be preserved to the parties inviolate" (emphasis added). This language hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts. 13 Indeed, Rule 38 (a) requires an affirmative statutory grant of the right where, as in this case, the Seventh Amendment does not apply. B As already indicated, it is unnecessary to go beyond the language of the statute itself to conclude that Congress did not intend to confer a right to trial by jury on ADEA plaintiffs proceeding against the Federal Government. But it is helpful briefly to explore the legislative history, if only to demonstrate that it no more supports the holding of the Court of Appeals than does the statutory language itself. [453 U.S. 156, 166] The respondent cannot point to a single reference in the legislative history to the subject of jury trials in cases brought against the Federal Government. There is none. And there is nothing to indicate that Congress did not mean what it plainly indicated when it expressly provided for jury trials in 7 (c) cases but not in 15 (c) cases. In fact, the few inferences that may be drawn from the legislative history are inconsistent with the respondent's position. The ADEA originally applied only to actions against private employers. Section 7 incorporated the enforcement scheme used in employee actions against private employers under the FLSA. In Lorillard, the Court found that the incorporation of the FLSA scheme into 7 indicated that the FLSA right to trial by jury should also be incorporated. The Lorillard holding was codified in 1978 when 7 (c) was amended to provide expressly for jury trials in actions brought under that section. Congress expanded the scope of ADEA in 1974 to include state and local government and Federal Government employers. State and local governments were added as potential defendants by a simple expansion of the term "employer" in the ADEA. The existing substantive and procedural provisions of the Act, including 7 (c), were thereby extended to cover state and local government employees. In contrast, Congress added an entirely new section, 15, to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, 14 and one based not on [453 U.S. 156, 167] the FLSA but, as already indicated, on Title VII. 15 where, unlike the FLSA, there was no right to trial by jury. 16 Finally, in a 1978 amendment to ADEA. Congress declined an opportunity to extend a right to trial by jury to federal employee plaintiffs. Before the announcement of Lorillard, the Senate, but not the House, had included an amendment to 7 (c) to provide for jury trials in a pending bill to revise ADEA. After Lorillard, the Conference Committee recommended and Congress enacted the present 7 (c) (2), closely resembling the jury trial amendment passed by the Senate. But the Conference did not recommend, and Congress did not enact, any corresponding amendment of 15 (c) to provide for jury trials in cases against the Federal Government. Indeed, [453 U.S. 156, 168] the conferees recommended and Congress enacted a new 15 (f), 29 U.S.C. 633a (f) (1976 ed., Supp. III), providing that federal personnel actions covered by 15 are not subject to any other section of ADEA, with one exception not relevant here. See H. R. Conf. Rep. No. 95-950, p. 11 (1978). See also H. R. Rep. No. 95-527, p. 11 (1977) ("Section 15 . . . is complete in itself"). Since the new subsection (f) clearly emphasized that 15 was self-contained and unaffected by other sections, including those governing procedures applicable in actions against private employers, Judge Tamm, dissenting in the Court of Appeals, was surely correct when he concluded that "[i]n amending both sections as it did, Congress could not have overlooked the need to amend [ 15 (c)] to allow jury trials for government employees if it had so wished." 202 U.S. App. D.C., at 69, n. 8, 628 F.2d, at 69, n. 8. C But even if the legislative history were ambiguous, that would not affect the proper resolution of this case, because the plaintiff in an action against the United States has a right to trial by jury only where Congress has affirmatively and unambiguously granted that right by statute. Congress has most obviously not done so here. Neither the provision for federal employer cases to be brought in district courts rather than the Court of Claims, nor the use of the word "legal" in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. Congress expressly provided for jury trials in the section of the Act applicable to privatesector employers, and to state and local governmental entities. It did not do so in the section applicable to the Federal Government as an employer, and indeed, patterned that section after provisions in another Act under which there is no right to trial by jury. The conclusion is inescapable that Congress did not depart from its normal practice of not providing a [453 U.S. 156, 169] right to trial by jury when it waived the sovereign immunity of the United States. For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Footnotes [Footnote 1 81 Stat. 602, as amended, 29 U.S.C. 621-634 (1976 ed. and Supp. III). [Footnote 2 29 U.S.C. 633a. [Footnote 3 Section 15 (a), as amended in 1978, provides in pertinent part: "All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments [and other enumerated Government agencies] shall be made free from any discrimination based on age. 29 U.S.C. 633a (a) (1976 ed., Supp. III). [Footnote 4 29 U.S.C. 633a (b) (1976 ed. and Supp. III). [Footnote 5 29 U.S.C. 633a (c). [Footnote 6 Section 7 (c), as amended in 1978 and as set forth in 29 U.S.C. 626 (c) (1976 ed., Supp. III), provides: "(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter; Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Commission to enforce the right of such employee under this chapter. "(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action." With the exception of the express right to jury trial conferred by 7 (c) (2) and of the proviso in 7 (c) (1), 7 (c) is identical to 15 (c). Section 7 (c) (2) was added by the 1978 amendments of the ADEA. [Footnote 7 See n. 6, supra. [Footnote 8 It is not difficult to appreciate Congress' reluctance to provide for jury trials against the United States. When fashioning a narrow exception to permit jury trials in tax refund cases in federal district courts under 28 U.S.C. 1346 (a) (1), in legislation that Congress recognized established a "wholly new precedent," H. R. Rep. No. 659, 83d Cong., 1st Sess., 3 (1953), Congress expressed its concern that juries "might tend to be overly generous because of the virtually unlimited ability of the Government to pay the verdict." Ibid. Indeed, because of their firm opposition to breaking with precedent, the House conferees took almost a year before acceding to passage of the bill containing that exception. Only after much debate, and after the conferees became convinced that there would be no danger of excessive verdicts as a result of jury trials in that unique context - because recoveries would be limited to the amount [453 U.S. 156, 162] of taxes illegally or erroneously collected - was the bill passed. See H. R. Conf. Rep. No. 2276, 83d Cong., 2d Sess., 2 (1954). [Footnote 9 The respondent argues that the strong presumption against the waiver of sovereign immunity has no relevance to the question of a right to trial by jury. But it is clear that the doctrine of sovereign immunity and its attendant presumptions must inform the Court's decision in this case. The reason that the Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States. Since there is no generally applicable jury trial right that attaches when the United States consents to suit, the accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action. [Footnote 10 The dissenters contend that this argument can only be made at the expense of overruling the Lorillard decision. But, as hereafter indicated, Lorillard has little relevance here. And, of course, the position taken in the dissent totally loses its force in view of the 1978 amendments to the [453 U.S. 156, 163] ADEA, see infra. at 167-168, where Congress expressly extended a jury trial right in 7 (c) but not in 15 (c). [Footnote 11 The decisions cited by the Court in Lorillard, 434 U.S., at 580 , n. 7, for the proposition that there is a right to a jury trial in FLSA actions all appear to have rested on the Seventh Amendment, not the FLSA itself. Thus, for the same reason that the Seventh Amendment does not apply in suits against the Federal Government, there would be no comparable right to trial by jury in FLSA suits against the Federal Government under 29 U.S.C. 216 (b). Accordingly, even if Congress intended to incorporate the FLSA enforcement scheme into 15 of the ADEA, there would be no basis for inferring a right to a jury trial in ADEA cases where the employer is the Federal Government. [Footnote 12 There are a number of reasons why Congress may have chosen to limit jurisdiction to the federal district courts. They, along with state courts, already had jurisdiction of private-sector ADEA cases under 7 (c). Congress may have decided to follow the same course in federal sector cases, but confined jurisdiction to federal district courts so that there would not be trials in state courts of actions against the Federal Government. Exclusive district court jurisdiction is also consistent with the jurisdictional references in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e-5 (f) (3) and 2000e-16 (c). Congress may also have believed it appropriate to have trials in federal district courts because they, unlike the Court of Claims, are accustomed to awarding equitable relief of the sort authorized by 15 (c). [Footnote 13 The respondent relies on United States v. Pfitsch, 256 U.S. 547 . But the language relied on in Pfitsch is dicta, since the parties in that case agreed to trial by the court sitting without a jury, id., at 549, and the jury trial issue was therefore not directly before the Court. In any event, Pfitsch is plainly distinguishable. There Congress specifically rejected a proposal, "presented to its attention in a most precise form," id., at 552, to confer concurrent jurisdiction on the district courts and Court of Claims under the Tucker Act and instead conferred a new and exclusive jurisdiction on the district courts. Given the particular legislative history in that case, the Court found it "difficult to conceive of any rational ground" for conferring exclusive jurisdiction on the district courts except to provide for jury trials. Ibid. That, of course, is not true here. See n. 12, supra. Moreover, Pfitsch arose before Rule 38 (a) of the Federal Rules of Civil Procedure. Rule 38 (a) made it clear that there is no general right to trial by jury in civil actions in federal district courts. The Rule establishes a mechanism for determining when there is such a right - i. e., when the Seventh Amendment applies, or if not, when a statute provides it. The respondent also relies on Law v. United States, 266 U.S. 494 . The statement in Law regarding jury trials, which in fact does no more than cite Pfitsch, is also dictum, and of virtually no relevance in this context. [Footnote 14 A bill introduced by Senator Bentsen on March 9, 1972, S. 3318, 92d Cong., 2d Sess., 118 Cong. Rec. 7745 (1972), represented the first attempt to prohibit age discrimination in federal employment. This bill would have simply amended the definition of "employer" in the Act to include the Federal Government, as well as state and local governments. The result would presumably have been to bring federal employees under the procedural provisions in 7. But Senator Bentsen subsequently submitted [453 U.S. 156, 167] a revised version of his bill in the form of an amendment to pending FLSA amendments. See 118 Cong. Rec. 15894 (1972). In contrast to Senator Bentsen's original bill, this amendment to the ADEA proposed the expansion of the definition of the term "employer" only with respect to state and local governments; ADEA coverage of federal employees was to be accomplished by the addition of an entirely new and separate section to the Act (presently 15). Senator Bentsen's amendment was included in the FLSA bill reported by the Committee on Labor and Public Welfare, S. Rep. No. 92-842, pp. 93-94 (1972), and it remained in this form when the bill was enacted into law in 1974. [Footnote 15 Sections 15 (a) and 15 (b) of the ADEA, as offered by Senator Bentsen and as finally enacted, are patterned directly after 717 (a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub. L. 92-261, 86 Stat. 111-112, which extend Title VII protections to federal employees. Senator Bentsen acknowledged that "[t]he measures used to protect Federal employees [from age discrimination] would be substantially similar to those incorporated" in recently enacted amendments to Title VII. 118 Cong. Rec. 24397 (1972). [Footnote 16 In fact, during floor consideration of the 1972 amendments to Title VII, the Senate rejected an amendment that would have conferred a statutory right to trial by jury in Title VII cases. Id, at 4919-4920. Senator Javits, in opposing the amendment, observed that it would impose "what would be a special requirement in these cases, as distinguished from the antidiscrimination field generally, of jury trial." Id., at 4920. JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. In Lorillard v. Pons, 434 U.S. 575 (1978), this Court held that an employee who brings an action against his private employer under 7 (c) of the Age Discrimination in Employment Act (ADEA or Act), 29 U.S.C. 626 (c), is entitled to trial by jury. The question presented in this case is whether a plaintiff has a right to trial by jury in an action against the Federal Government under 15 (c) of the ADEA, 29 U.S.C. 633a (c). The Court today holds that a jury trial is not available in such actions. Because I believe that Congress unmistakably manifested its intention to accord a jury trial right, I dissent. I Respondent brought this lawsuit in the United States District Court for the District of Columbia against the Secretary of the Navy, alleging violations of the ADEA. She demanded a jury trial, and the Secretary moved to strike that demand. The District Court denied the motion to strike, but certified for interlocutory appeal the question whether a jury trial is available in an ADEA action against the Federal Government. See 28 U.S.C. 1292 (b). The Court of Appeals granted the Secretary's petition for interlocutory review and affirmed the ruling of the District Court that respondent is entitled to a jury trial. Nakshian v. Claytor, 202 U.S. App. D.C. 59, 628 F.2d 59 (1980). Relying principally on the fact that Congress vested jurisdiction over ADEA suits against the Federal Government in the Federal district courts rather than in the Court of Claims and on the authorization in 15 [453 U.S. 156, 170] (c) of the Act for the award of "legal and equitable relief," the Court of Appeals construed the statute to accord a jury trial. II It is well settled that the "United States, as sovereign, `is immune from suit save as it consents to be sued.'" United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941). Consent to suit by the United States must be "unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. King, 395 U.S. 1, 4 (1969). In the ADEA, the United States has expressly waived its immunity, 29 U.S.C. 633a (1976 ed. and Supp. III), so that there can be no doubt of its consent to be sued. The requirement that a waiver of immunity be unequivocally expressed, however, does not, as the Court suggests, carry with it a presumption against jury trial in cases where the United States has waived its immunity. Indeed, we have previously declined to adopt such a presumption. See Law v. United States, 266 U.S. 494 (1925); United States v. Pfitsch, 256 U.S. 547 (1921). 1 [453 U.S. 156, 171] Moreover, the Court's view that there is a presumption against jury trials in suits against the Federal Government is belied by the very statutes that it cites to indicate that Congress has often "conditioned [the] waiver [of immunity] upon a plaintiff's relinquishing any claim to a jury trial." Ante, at 161. The fact that Congress has found it necessary to state expressly that there is no jury trial right in a broad range of cases against the Government, see 28 U.S.C. 1346, 2402, demonstrates that Congress does not legislate against the backdrop of any presumption against a jury trial right in suits against the United States. I believe, therefore, that once the Government unequivocally waives its immunity from suit, the plaintiff's right to jury trial is a question of statutory construction. 2 The proper inquiry is whether the statute expressly or by fair implication provides for a jury trial. 3 See Law v. United States, supra; United States v. [453 U.S. 156, 172] Pfitsch, supra; 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice § 38-31 2., p. 38-237 (1981); 9 C. Wright & A. Miller, Federal Practice and Procedure 2314, p. 69 (1971). I turn, therefore, to the statute itself. Congress passed the ADEA in 1967 to protect older workers against discrimination in the workplace on the basis of age. See 29 U.S.C. 621 (b), 623; Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); Lorillard v. Pons, 434 U.S., at 577 . See generally Note, Age Discrimination in Employment, 50 N. Y. U. L. Rev. 924, 945 (1975). The Act's protection was originally limited to employees in the private sector, see Pub. L. 90-202, 11, 81 Stat. 605, 29 U.S.C. 630 (b) (1970 ed.), 4 but Congress amended the Act in 1974 by adding 15, which extended protection to federal employees as well. 29 U.S.C. 633a. Section 15 (a) provides that personnel actions affecting federal employees "shall be made free from any discrimination based on age," while 15 (b) grants the Equal Employment Opportunity Commission authority to enforce the statutory provisions. 5 Although there [453 U.S. 156, 173] is no provision which expressly grants or precludes a jury trial, Congress provided in 15 (c), 88 Stat. 75, that "[a]ny [federal employee] aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act." 29 U.S.C. 633a (c) (emphasis added). It is this provision that I believe demonstrates congressional intent to allow a jury trial in ADEA suits against the Federal Government. In Lorillard v. Pons, supra, the Court construed 7 (b) and 7 (c) 6 - a provision identical to 15 (c) in all relevant respects - to afford age discrimination plaintiffs the right to a jury trial against private employers. 7 The Court reached this result for two reasons. First, the Court found that the language in 7 (b), 29 U.S.C. 626 (b), that "[t]he provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures" of certain provisions of the Fair Labor Standards Act (FLSA), suggested that Congress intended to grant a jury trial right because "[l]ong before Congress enacted the ADEA, it was well established that there was a right to a jury trial in private actions pursuant to the FLSA." 434 U.S., at 580 . Second, and more significant for this case, the Court found that 7 (c)'s authorization of the courts to grant and individuals to seek "legal or equitable relief," 29 U.S.C. 626 (c) (emphasis added), strongly suggested that Congress intended to grant a jury trial right. 434 U.S., at 583 . Thus, the Court held, as a [453 U.S. 156, 174] matter of statutory construction, that the ADEA allows jury trials in actions against private employers. In the instant case, Congress similarly authorized aggrieved persons to seek and district courts to grant "such legal or equitable relief as will effectuate the purposes of this chapter," 29 U.S.C. 633a (c) (emphasis added), thereby suggesting that federal employees are entitled to a jury trial under the ADEA. As a unanimous Court emphasized in Lorillard: "The word `legal' is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. See Curtis v. Loether, 415 U.S. 189, 195 -196 (1974). `[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.' Standard Oil v. United States, 221 U.S. 1, 59 (1911). See Gilbert v. United States, 370 U.S. 650, 655 (1962); Montclair v. Ramsdell, 107 U.S. 147, 152 (1883). We can infer, therefore, that by providing specifically for `legal' relief, Congress knew the significance of the term `legal,' and intended that there would be a jury trial on demand . . . ." 434 U.S., at 583 . 8 [453 U.S. 156, 175] Although the Seventh Amendment right to trial by jury in suits at common law does not extend to civil actions against the Federal Government, Congress may extend the jury trial right by legislation. See Galloway v. United States, 319 U.S. 372, 388 -389 (1943). Congress' provision for "legal and equitable relief" suggests, therefore, that it intended to allow jury trials in ADEA actions against the Federal Government. This strong inference that Congress intended to legislate a jury trial right is reinforced by Congress' decision to vest jurisdiction in the District Courts, rather than the Court of Claims, to decide ADEA suits brought against the Federal Government. This Court has previously observed that vesting jurisdiction in the district courts rather than the Court of Claims supports an inference of a right to jury trial. In United States v. Pfitsch, the Court stated that "the right to a jury trial is an incident" of the grant of "exclusive jurisdiction in the District Courts." 256 U.S., at 552 . Similarly, in Law v. United States, the Court held that the District Court erred in denying a right to a jury trial under the War Risk Insurance Act, when the court concluded that its jurisdiction "was the exceptional jurisdiction concurrent with the Court of Claims," rather than that "exercised in accordance with the laws governing the usual procedure of the court in actions at law for money compensation." 266 U.S., at 496 . 9 [453 U.S. 156, 176] Congress' vesting of jurisdiction in the federal district courts under 15 (c) of the ADEA suggests, therefore, that it intended to provide a jury trial right to federal ADEA plaintiffs. 10 The legislative history of the 1974 ADEA amendments, extending protection to federal employees, is consistent with [453 U.S. 156, 177] the conclusion that Congress intended to allow jury trials. Congress' failure to include federal employees under the ADEA when the Act was first passed "did not represent a conscious decision by the Congress to limit the ADEA to employment in the private sector. It reflects the fact, that in 1967, when ADEA was enacted, most government employees were outside the scope of the FLSA and the Wage Hour and Public Contracts Divisions of the Department of Labor, which enforces the Fair Labor Standards Act, were assigned responsibility for enforcing the Age Discrimination in Employment Act." S. Rep. No. 93-690, p. 55 (1974). When the Act was amended in 1974, Congress intended that "Government employees . . . be subject to the same protections against arbitrary employment based on age as are employees in the private sector." 120 Cong. Rec. 8768 (1974) (remarks of Sen. Bentsen, principal proponent of ADEA extension to federal employees) (emphasis added). 11 To be sure, Congress did not provide for identical enforcement schemes for private-sector and federal-sector age discrimination complaints. But when Congress departed from the "same protections" for federal employees, ibid., that it had granted private-sector employees, it did so expressly. Not only did Congress in 15 not expressly disallow jury trials where the Federal Government is the defendant, but Congress used the same language in 15 (c) that it had used in 7 (c) in authorizing suits in the district courts for legal or equitable relief against private parties. This strongly suggests [453 U.S. 156, 178] that it intended to make the jury trial right it approved against private employers equally applicable to ADEA suits against the Federal Government. The strong manifestation of congressional intent from both the language and the legislative history of the 1974 amendments is enhanced by the total absence of any persuasive evidence of a contrary legislative intent. The Court argues, nonetheless, that Congress' decision in 1978 to amend the ADEA to provide explicitly for jury trials in private employer cases brought under 7, 12 without also amending 15 (c), demonstrates an intention to preclude jury trials against the Government. I am completely unpersuaded. The bill which led to codification of a jury trial right in 7 (c) (2) was introduced by Senator Kennedy before this [453 U.S. 156, 179] Court decided Lorillard. In order to settle a conflict among the Courts of Appeals over the availability of jury trials in ADEA suits against private employers, 13 Senator Kennedy proposed an amendment to the ADEA which would state in haec verba that jury trials are allowed. 123 Cong. Rec. 34317-34318 (1977). 14 Senator Kennedy's amendment was adopted by the Senate without debate. Lorillard was subsequently decided. Thereafter, Congress passed the Kennedy amendment, with a modification proposed by the House at Conference extending the jury trial right beyond that proposed by Senator Kennedy and passed by the Senate to include claims for liquidated damages. I can discern no congressional intent to preclude the right to a jury trial in ADEA actions against the Federal Government from this sequence of events. The more plausible explanation, and the one with textual support in the relevant legislative history, H. R. Conf. Rep. No. 95-950, pp. 13-14 (1978), is that Congress understood from the Lorillard opinion that conferring the power to award legal relief suggested a jury trial right 15 and that the reason Congress proceeded with the Kennedy amendment was to make clear not only that suits for wages [453 U.S. 156, 180] could be tried before a jury, but also that suits for liquidated damages could be tried before a jury, an issue explicitly left unresolved in Lorillard, 434 U.S., at 577 , n. 2. 16 Moreover, that Congress did not add the same provision to 15 that it added to 7 is not indicative of an intent to prohibit jury trials for the additional reason that it was the conflict in the Courts of Appeals over whether employees could have a jury trial against private employers which prompted Senator Kennedy to introduce his bill. There had been no parallel development in the courts interpreting 15. This legislative history, therefore, does not support the conclusion that the Court seeks to draw from it. The Court also argues that the absence of any reference in 15 to the FLSA "powers, remedies and procedures" to which 7 refers and upon which Lorillard partially relied suggests that Congress did not intend to allow jury trials against the Federal Government. But our decision in Lorillard rested equally on the provision in 7 (c) for "legal or equitable relief" as a strong and independent indication of congressional intent to allow jury trials. In addition, the more likely explanation for the absence of any reference in 15 to the FLSA sections referred to in 7 (b) is that Congress intended to use existing administrative procedures "to enforce the provisions of [ 15 (a)] through appropriate remedies, including reinstatement or hiring of employees with or without backpay." 29 U.S.C. 633a (b) (1976 ed., Supp. III). Prior to the 1974 amendments extending ADEA coverage to federal employees, employment discrimination complaints by federal employees were processed by the Civil Service Commission, so that it is not surprising that Congress decided to use existing administrative machinery in 15 (b) to enforce ADEA provisions protecting federal employees. [453 U.S. 156, 181] See 39 Fed. Reg. 24351 (1974), reprinted as amended at 29 CFR 1613.501-1613.521 (1980). 17 The failure to refer to FLSA procedures in 15 apparently derives, not from a desire to limit jury trials, but from an intention to employ different administrative procedures for age discrimination complaints brought against the Federal Government. 18 Seen in this light, the Court's strained interpretation of the failure to refer to FLSA procedures in 15 is totally unpersuasive. III Based on the language of 15 (c) and on the legislative history, which is consistent with my interpretation of that language, I would hold that Congress intended to allow jury trials in ADEA suits against the Federal Government. [Footnote 1 As the Court of Appeals correctly noted: "Since sovereign immunity bars all actions against the Government - actions tried to the court as well as those tried to a jury - it is difficult to see why this doctrine should create a presumption against any particular method of trial. . . . [O]nce Congress has waived the Government's immunity, and where it has not explicitly specified the trial procedure to be followed, sovereign immunity drops out of the picture. Courts must then scrutinize the available indicia of legislative intent to see what trial procedure Congress authorized." Nakshian v. Claytor, 202 U.S. App. D.C. 59, 63, n. 4, 628 F.2d 59, 63, n. 4 (1980). The Court's reliance on Soriano v. United States, 352 U.S. 270 (1957), is misplaced. See ante, at 160-161. There, the Court held that the statute of limitations prescribed by Congress barred petitioner's claim against the United States, because the "disability" asserted by petitioner to toll the limitations period was not one of the disabilities enumerated in the statute. In this context, the Court, therefore, concluded that "limitations and conditions upon which the Government consents to be sued must be strictly [453 U.S. 156, 171] observed and exceptions thereto are not to be implied." 352 U.S., at 276 . That is, where Congress has expressly provided for limitations on the waiver of immunity, "exceptions [to the limitations] are not to be implied." Ibid. That is not this case. [Footnote 2 There is of course no Seventh Amendment right to a jury trial against the Federal Government. Galloway v. United States, 319 U.S. 372, 388 -389 (1943); McElrath v. United States, 102 U.S. 426, 440 (1880). [Footnote 3 Rule 38 (a) of the Federal Rules of Civil Procedure is not to the contrary. It provides that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." There is no requirement in Rule 38 that Congress make its intent to authorize jury trials express, provided Congress otherwise makes its intent known. Indeed, Rule 38 was fully applicable at the time of Lorillard v. Pons, where this Court found a jury trial right even though the words "trial by jury," did not appear in the statute. The Court does not argue otherwise in stating that Rule 38 requires "an affirmative statutory grant" of the jury trial right. Ante, at 165. The Court does not argue that Rule 38 requires a jury trial right to be express. Obviously, that argument would be frivolous since Lorillard found a jury trial right in the absence of an express provision conferring the right. Either Rule 38 does not require that the grant [453 U.S. 156, 172] be express, as I suggest, or the unanimous holding of the Court in Lorillard was wrong. Still, the Court misapprehends the thrust of my argument when it states that Rule 38 "hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts." Ante, at 165. I have simply argued that conferral of jurisdiction on the district courts raises an inference of a jury trial right in suits against the United States, because the Court of Claims, where there is no jury trial right, is an available alternative forum for such cases. Here, Congress chose for 15 (c) cases the federal district courts, not the Court of claims, as the appropriate forum. [Footnote 4 As originally passed, the definition of the term "employer" expressly excluded the United States, States, and political subdivisions from ADEA coverage. Pub. L. 90-202, 11, 81 Stat. 605, 29 U.S.C. 630 (b) (1970 ed.). [Footnote 5 The Equal Employment Opportunity Commission assumed enforcement authority from the Civil Service Commission in 1978 pursuant to Reorganization Plan No. 1 of 1978, 2. 3 CFR 321 (1979), 5 U.S.C. App. p. 354 (1976 ed., Supp. III). [Footnote 6 Section 7 (c) of the ADEA, 29 U.S.C. 626 (c), as it read when Lorillard was decided, stated in full: "Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter." [Footnote 7 By construing the statute to allow a jury trial, the court did not have to decide whether "the Seventh Amendment requires that in a private action for lost wages under the ADEA, the parties must be given the option of having the case heard by a jury." 434 U.S., at 577 . [Footnote 8 The Court's statement that "[i]n Lorillard, the authorization for the award of `legal' relief was significant largely because of the presence of a constitutional question" is not correct. Ante, at 163. To be sure, a constitutional question was present in Lorillard, but the Court specifically declined to ground its decision on the Seventh Amendment. See n. 7, supra. Rather, it construed the language "legal or equitable relief" in 7 (c) of the ADEA. The Court concluded that when Congress used the words "legal . . . relief," which are equally present in 15 (c), it intended that a jury trial right be available. That Congress used the words "legal . . . relief" in 7 (c) differently from the way it used the same words in 15 (c) is implausible. Moreover, the Court erroneously suggests that 15 (a) and (b) are identical to 717 (a) and (b) of Title VII of the Civil Rights Act of [453 U.S. 156, 175] 1964, ante, at 163-164, for it fails to note that Title VII does not authorize the courts to award "legal relief," as 15 (c) does. [Footnote 9 In United States v. Pfitsch, the Court construed 10 of the Lever Act which conferred exclusive jurisdiction in the district courts to hear lawsuits brought by persons dissatisfied with the President's award of compensation for supplies requisitioned by the Federal Government. In deciding that a judgment rendered under 10 is not reviewable in this Court by direct writ of error, the Court stated that Congress "had the issue clearly drawn between granting for the adjudication of cases arising under [ 10] concurrent jurisdiction in the Court of Claims and the District Courts without a trial by jury, or of establishing an exclusive [453 U.S. 156, 176] jurisdiction in the District Courts of which the right to a jury trial is an incident." 256 U.S., at 552 (emphasis added). That Congress did not, so far as the legislative history indicates, expressly debate vesting concurrent jurisdiction in the Court of Claims over ADEA suits against the Federal Government does not weaken the force of United States v. Pfitsch, despite the Court's protestations to the contrary. Indeed, in Law v. United States, an important case that the Court virtually ignores, see ante, at 165, n. 13, it was of no significance whether Congress specifically considered vesting jurisdiction in the Court of Claims in order to conclude that the War Risk Insurance Act authorized a jury trial in a suit against the Federal Government. What is significant in the instant case is that, in allowing suits against the Government under the ADEA, Congress expressly opted for jurisdiction in the district courts and not the Court of Claims, which in lawsuits against the Government is a self-evident, alternative forum of which Congress was undoubtedly aware. [Footnote 10 One leading commentator has concluded: "Congress may confer jurisdiction of actions against the United States upon a district court sitting as a court at law (or equity), as a court of claims, and as a court of admiralty. And the particular grant of jurisdiction will determine the method of trial, court or jury, in the absence of some express provision dealing with the method of trial. Thus, absent a provision as to the method of trial, a grant of jurisdiction to a district court as a court at law carries with it a right of jury trial." 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice § 38.31 2., p. 38-239 (1981) (emphasis added; footnotes omitted). The Court rejects the force of the statute's language. It suggests that, because of similarities between 15 and Title VII of the Civil Rights Act of 1964, Congress may simply have wished to provide for federal court jurisdiction because Title VII had. It argues further that Congress may also have thought that district court jurisdiction was appropriate since the statute provided for grant of equitable as well as legal relief, and that district courts, unlike the Court of Claims, are accustomed to awarding equitable relief. Ante, at 164, n. 12. These explanations are purely speculative. There is no basis in the legislative history for them and they are counter to the logical inferences from the language of the statute. [Footnote 11 Senator Bentsen also stated: "There is no reason why private enterprise should be subject to restrictions that are not applicable to the Federal Government. . . . . . "What this legislation does is to give these workers coverage under the age discrimination law and to give them a procedure to pursue their complaints." 120 Cong. Rec. 5741 (1974). [Footnote 12 Section 7 (c) of the ADEA, 29 U.S.C. 626 (c) (1976 ed., Supp. III), now provides: "(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter. "(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action." The Court contends that the presence of express language granting a jury trial right in 7 (c) in contrast to the absence of such express language in 15 demonstrates that Congress "knew how to provide a statutory right to a jury trial when it wished to do so." Ante, at 162. I find this argument hard to fathom. The Court recognizes, as it must, that there was no such express language in 7 (c) when this Court decided in Lorillard that Congress intended ADEA actions against private employers to include a jury trial right, and that the express language relied on by the Court was added two months after Lorillard was decided and four years after the identical language which was construed in Lorillard was added to the ADEA in 15 (c). Therefore, unless the Court is suggesting that the unanimous holding in Lorillard was wrong, the Court is bound to apply the same analysis to this case. [Footnote 13 Compare Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (CA3 1977) (right to jury trial), cert. denied, 434 U.S. 1022 (1978), and Pons v. Lorillard, 549 F.2d 950 (CA4 1977) (same), aff'd, 434 U.S. 575 (1978), with Morelock v. NCR Corp., 546 F.2d 682 (CA6 1976) (no right to jury trial), vacated and remanded, 435 U.S. 911 (1978). [Footnote 14 Senator Kennedy further explained: "[J]uries are more likely to be open to the issues which have been raised by the plaintiffs. Sometimes, a judge may be slightly callous, perhaps because he himself is protected by life tenure, or because he is somewhat removed from the usual employer-employee relationship. The jury may be more neutral in such circumstances." 123 Cong. Rec. 34318 (1977). [Footnote 15 Indeed, the Conference Report specifically noted that the Court had recently decided Lorillard v. Pons, and went on to state: "Because liquidated damages are in the nature of legal relief, it is manifest that a party is entitled to have the factual issues underlying such a claim decided by jury." H. R. Conf. Rep. No. 95-950, p. 14 (1978). [Footnote 16 "The Supreme Court recently ruled that a plaintiff is entitled to a jury trial in ADEA actions for lost wages, but it did not decide whether there is a right to jury trial on a claim for liquidated damages." Id., at 13. [Footnote 17 The Court further suggests that, because the ADEA was patterned in significant respects after Title VII, and since Title VII has been held by lower federal courts not to allow a jury trial right, it follows that 15 does not contemplate such a right. I find this argument unpersuasive, as the Court did in Lorillard. The Court has previously said that, despite important similarities between Title VII and the ADEA, "it is the remedial and procedural provisions of the two laws that are crucial and there we find significant differences." Lorillard v. Pons, 434 U.S., at 584 . "Congress specifically provided for both `legal or equitable relief' in the ADEA, but did not authorize `legal' relief in so many words under Title VII." Ibid. [Footnote 18 This interpretation is supported by Congress' extension of ADEA protection to employees of state and local governments, which occurred at the same time that Congress extended coverage to federal employees. Because the definitional section of the Act was amended to include state and local governments within the definition of "employer," 29 U.S.C. 630 (b), age discrimination complaints against state and local governments can be tried to a jury for the same reason that complaints against private entities can be. Nowhere in the legislative history did Congress evince a desire to allow state and local government employees a jury trial right, while withholding the same right from federal employees. Rather, federal employees were covered in a separate section of the Act, apparently so that existing administrative machinery could be used. [453 U.S. 156, 182]

conservative

person

criminal_procedure

1963-027-01

United States Supreme Court S. E. C. v. CAPITAL GAINS BUREAU(1963) No. 42 Argued: October 21, 1963Decided: December 9, 1963 Under the Investment Advisers Act of 1940, the Securities and Exchange Commission may obtain an injunction compelling a registered investment adviser to disclose to his clients a practice of purchasing shares of a security for his own account shortly before recommending that security for long-term investment and then immediately selling his own shares at a profit upon the rise in the market price following the recommendation, since such a practice "operates as a fraud or deceit upon any client or prospective client," within the meaning of the Act. Pp. 181-201. (a) Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit" upon a client, did not intend to require proof of intent to injure and actual injury to the client; it intended the Act to be construed like other securities legislation "enacted for the purpose of avoiding frauds," not technically and restrictively, but rather flexibly to effectuate its remedial purposes. Pp. 186-195. (b) The Act empowers the courts, upon a showing such as that made here, to require an adviser to make full and frank disclosure of his practice of trading on the effect of his recommendations. Pp. 195-197. (c) In the light of the evident purpose of the Act to substitute a philosophy of disclosure for the philosophy of caveat emptor, it cannot be assumed that the omission from the Act of a specific proscription against nondisclosure was intended to limit the application of the antifraud and antideceit provisions of the Act so as to render the Commission impotent to enjoin suppression of material facts. Pp. 197-199. (d) The 1960 amendment to the Act does not justify a narrow interpretation of the original enactment. Pp. 199-200. [375 U.S. 180, 181] (e) Even if respondents' advice was "honest," in the sense that they believed it was sound and did not offer it for the purpose of furthering personal pecuniary objectives, the Commission was entitled to an injunction requiring disclosure. Pp. 200-201. 306 F.2d 606, reversed and remanded. David Ferber argued the cause for petitioner. With him on the brief were Solicitor General Cox, Daniel M. Friedman and Philip A. Loomis, Jr. Leo C. Fennelly argued the cause and filed a brief for respondents. MR. JUSTICE GOLDBERG delivered the opinion of the Court. We are called upon in this case to decide whether under the Investment Advisers Act of 1940 1 the Securities and Exchange Commission may obtain an injunction compelling a registered investment adviser to disclose to his clients a practice of purchasing shares of a security for his own account shortly before recommending that security for long-term investment and then immediately selling the shares at a profit upon the rise in the market price following the recommendation. The answer to this question turns on whether the practice - known in the trade as "scalping" - "operates as a fraud or deceit upon any client or prospective client" within the meaning of the Act. 2 We hold that it does and that the Commission may "enforce compliance" with the Act by obtaining an [375 U.S. 180, 182] injunction requiring the adviser to make full disclosure of the practice to his clients. 3 The Commission brought this action against respondents in the United States District Court for the Southern District of New York. At the hearing on the application for a preliminary injunction, the following facts were established. Respondents publish two investment advisory services, one of which - "A Capital Gains Report" [375 U.S. 180, 183] - is the subject of this proceeding. The Report is mailed monthly to approximately 5,000 subscribers who each pay an annual subscription price of $18. It carries the following description: "An Investment Service devoted exclusively to (1) The protection of investment capital. (2) The realization of a steady and attractive income therefrom. (3) The accumulation of CAPITAL GAINS thru the timely purchase of corporate equities that are proved to be undervalued." Between March 15, 1960, and November 7, 1960, respondents, on six different occasions, purchased shares of a particular security shortly before recommending it in the Report for long-term investment. On each occasion, there was an increase in the market price and the volume of trading of the recommended security within a few days after the distribution of the Report. Immediately thereafter, respondents sold their shares of these securities at a profit. 4 They did not disclose any aspect of these transactions to their clients or prospective clients. On the basis of the above facts, the Commission requested a preliminary injunction as necessary to effectuate the purposes of the Investment Advisers Act of 1940. The injunction would have required respondents, in any future Report, to disclose the material facts concerning, inter alia, any purchase of recommended securities "within a very short period prior to the distribution of a recommendation . . .," and "[t]he intent to sell and the sale of said securities . . . within a very short period after distribution of said recommendation . . . ." 5 [375 U.S. 180, 184] The District Court denied the request for a preliminary injunction, holding that the words "fraud" and "deceit" are used in the Investment Advisers Act of 1940 "in their technical sense" and that the Commission had failed to show an intent to injure clients or an actual loss of money to clients. 191 F. Supp. 897. The Court of Appeals for the Second Circuit, sitting en banc, by a 5-to-4 vote accepted the District Court's limited construction of "fraud" and "deceit" and affirmed the denial [375 U.S. 180, 185] of injunctive relief. 6 306 F.2d 606. The majority concluded that no violation of the Act could be found absent proof that "any misstatements or false figures were contained in any of the bulletins"; or that "the investment advice was unsound"; or that "defendants were being bribed or paid to tout a stock contrary to their own beliefs"; or that "these bulletins were a scheme to get rid of worthless stock"; or that the recommendations were made "for the purpose of endeavoring artificially to raise the market so that [respondents] might unload [their] holdings at a profit." Id., at 608-609. The four dissenting judges pointed out that "[t]he common-law doctrines of fraud and deceit grew up in a business climate very different from that involved in the sale of securities," and urged a broad remedial construction of the statute which would encompass respondents' conduct. Id., at 614. We granted certiorari to consider the question of statutory construction because of its importance to the investing public and the financial community. 371 U.S. 967 . The decision in this case turns on whether Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit upon any client or prospective client," intended to require the Commission to establish fraud and deceit "in their technical sense," including [375 U.S. 180, 186] intent to injure and actual injury to clients, or whether Congress intended a broad remedial construction of the Act which would encompass nondisclosure of material facts. For resolution of this issue we consider the history and purpose of the Investment Advisers Act of 1940. I. The Investment Advisers Act of 1940 was the last in a series of Acts designed to eliminate certain abuses in the securities industry, abuses which were found to have contributed to the stock market crash of 1929 and the depression of the 1930's. 7 It was preceded by the Securities Act of 1933, 8 the Securities Exchange Act of 1934, 9 the Public Utility Holding Company Act of 1935, 10 the Trust Indenture Act of 1939, 11 and the Investment Company Act of 1940. 12 A fundamental purpose, common to these statutes, was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry. 13 As we recently said in a related context, "It requires but little appreciation . . . of what happened in this country during the 1920's and 1930's to realize how essential it is that the highest ethical standards prevail" [375 U.S. 180, 187] in every facet of the securities industry. Silver v. New York Stock Exchange, 373 U.S. 341, 366 . The Public Utility Holding Company Act of 1935 "authorized and directed" the Securities and Exchange Commission "to make a study of the functions and activities of investment trusts and investment companies . . . ." 14 Pursuant to this mandate, the Commission made an exhaustive study and report which included consideration of investment counsel and investment advisory services. 15 This aspect of the study and report culminated in the Investment Advisers Act of 1940. The report reflects the attitude - shared by investment advisers and the Commission - that investment advisers could not "completely perform their basic function - furnishing to clients on a personal basis competent, unbiased, and continuous advice regarding the sound management of their investments - unless all conflicts of interest between the investment counsel and the client were removed." 16 The report stressed that affiliations by investment [375 U.S. 180, 188] advisers with investment bankers, or corporations might be "an impediment to a disinterested, objective, or critical attitude toward an investment by clients. . . ." 17 This concern was not limited to deliberate or conscious impediments to objectivity. Both the advisers and the Commission were well aware that whenever advice to a client might result in financial benefit to the adviser - other than the fee for his advice - "that advice to a client might in some way be tinged with that pecuniary interest [whether consciously or] subconsciously motivated . . . ." 18 The report quoted one leading investment adviser who said that he "would put the emphasis . . . on subconscious" motivation in such situations. 19 It quoted a member of the Commission staff who suggested that a significant part of the problem was not the existence of a "deliberate intent" to obtain a financial advantage, but rather the existence "subconsciously [of] a prejudice" in favor of one's own financial interests. 20 The report incorporated the Code of Ethics and Standards of Practice of one of the leading investment counsel associations, which contained the following canon: "[An investment adviser] should continuously occupy an impartial and disinterested position, as free as humanly possible from the subtle influence of prejudice, conscious or unconscious; he should scrupulously avoid any affiliation, or any act, which subjects his position to challenge in this respect." 21 (Emphasis added.) Other canons appended to the report announced the following guiding principles: that compensation for investment advice "should consist exclusively of direct [375 U.S. 180, 189] charges to clients for services rendered"; 22 that the adviser should devote his time "exclusively to the performance" of his advisory function; 23 that he should not "share in profits" of his clients; 24 and that he should not "directly or indirectly engage in any activity which may jeopardize [his] ability to render unbiased investment advice." 25 These canons were adopted "to the end that the quality of services to be rendered by investment counselors may measure up to the high standards which the public has a right to expect and to demand." 26 One activity specifically mentioned and condemned by investment advisers who testified before the Commission was "trading by investment counselors for their own account in securities in which their clients were interested . . . ." 27 This study and report - authorized and directed by statute 28 - culminated in the preparation and introduction by Senator Wagner of the bill which, with some changes, became the Investment Advisers Act of 1940. 29 In its "declaration of policy" the original bill stated that "Upon the basis of facts disclosed by the record and report of the Securities and Exchange Commission . . . it is hereby declared that the national public interest and the interest of investors are adversely affected - . . . (4) when the business of investment advisers is so conducted as to defraud or mislead investors, or to enable such advisers to relieve themselves of their fiduciary obligations to their clients. [375 U.S. 180, 190] "It is hereby declared that the policy and purposes of this title, in accordance with which the provisions of this title shall be interpreted, are to mitigate and, so far as is presently practicable to eliminate the abuses enumerated in this section." S. 3580, 76th Cong., 3d Sess., 202. Hearings were then held before Committees of both Houses of Congress. 30 In describing their profession, leading investment advisers emphasized their relationship of "trust and confidence" with their clients 31 and the importance of "strict limitation of [their right] to buy and sell securities in the normal way if there is any chance at all that to do so might seem to operate against the interests of clients and the public." 32 The president of the Investment Counsel Association of America, the leading investment counsel association, testified that the "two fundamental principles upon which the pioneers in this new profession undertook to meet the growing need for unbiased investment information and guidance were, first, that they would limit their efforts and activities to the study of investment problems from the investor's standpoint, not engaging in any other activity, such as security selling or brokerage, which might directly or indirectly bias their investment judgment; and, second, that their remuneration for this work would consist solely of definite, professional fees fully disclosed in advance." 33 [375 U.S. 180, 191] Although certain changes were made in the bill following the hearings, 34 there is nothing to indicate an intent to alter the fundamental purposes of the legislation. The broad proscription against "any . . . practice . . . which operates . . . as a fraud or deceit upon any client or prospective client" remained in the bill from beginning to end. And the Committee Reports indicate a desire to preserve "the personalized character of the services of investment advisers," 35 and to eliminate conflicts of interest between the investment adviser and the clients 36 as safeguards both to "unsophisticated investors" and to "bona fide investment counsel." 37 The Investment Advisers Act of 1940 thus reflects a congressional recognition "of the delicate fiduciary nature of an investment advisory relationship," 38 as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser - [375 U.S. 180, 192] consciously or unconsciously - to render advice which was not disinterested. It would defeat the manifest purpose of the Investment Advisers Act of 1940 for us to hold, therefore, that Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit," intended to require proof of intent to injure and actual injury to clients. This conclusion moreover, is not in derogation of the common law of fraud, as the District Court and the majority of the Court of Appeals suggested. To the contrary, it finds support in the process by which the courts have adapted the common law of fraud to the commercial transactions of our society. It is true that at common law intent and injury have been deemed essential elements in a damage suit between parties to an arm's-length transaction. 39 But this is not such an action. 40 This is a [375 U.S. 180, 193] suit for a preliminary injunction in which the relief sought is, as the dissenting judges below characterized it, the "mild prophylactic," 306 F.2d, at 613, of requiring a fiduciary to disclose to his clients, not all his security holdings, but only his dealings in recommended securities just before and after the issuance of his recommendations. The content of common-law fraud has not remained static as the courts below seem to have assumed. It has varied, for example, with the nature of the relief sought, the relationship between the parties, and the merchandise in issue. It is not necessary in a suit for equitable or prophylactic relief to establish all the elements required in a suit for monetary damages. "Law had come to regard fraud . . . as primarily a tort, and hedged about with stringent requirements, the chief of which was a strong moral, or rather immoral element, while equity regarded it, as it had all along regarded it, as a conveniently comprehensive word for the expression of a lapse from the high standard of conscientiousness that it exacted from any party occupying a certain contractual or fiduciary relation towards another party." 41 "Fraud has a broader meaning in equity [than at law] and intention to defraud or to misrepresent is not a necessary element." 42 [375 U.S. 180, 194] "Fraud, indeed, in the sense of a court of equity properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." 43 Nor is it necessary in a suit against a fiduciary, which Congress recognized the investment adviser to be, to establish all the elements required in a suit against a party to an arm's-length transaction. Courts have imposed on a fiduciary an affirmative duty of "utmost good faith, and full and fair disclosure of all material facts," 44 as well as an affirmative obligation "to employ reasonable care to avoid misleading" 45 his clients. There has also been a growing recognition by common-law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue. 46 The 1909 New York case of Ridgely v. Keene, 134 App. Div. 647, 119 N. Y. Supp. 451, illustrates this continuing development. An investment adviser who, like respondents, published an investment advisory service, agreed, for compensation, to influence his clients to buy shares in a certain security. He did not disclose the agreement to his client but sought "to excuse his conduct by asserting that . . . he honestly [375 U.S. 180, 195] believed, that his subscribers would profit by his advice . . . ." The court, holding that "his belief in the soundness of his advice is wholly immaterial," declared the act in question "a palpable fraud." We cannot assume that Congress, in enacting legislation to prevent fraudulent practices by investment advisers, was unaware of these developments in the common law of fraud. Thus, even if we were to agree with the courts below that Congress had intended, in effect, to codify the common law of fraud in the Investment Advisers Act of 1940, it would be logical to conclude that Congress codified the common law "remedially" as the courts had adapted it to the prevention of fraudulent securities transactions by fiduciaries, not "technically" as it has traditionally been applied in damage suits between parties to arm's-length transactions involving land and ordinary chattels. The foregoing analysis of the judicial treatment of common-law fraud reinforces our conclusion that Congress, in empowering the courts to enjoin any practice which operates "as a fraud or deceit" upon a client, did not intend to require proof of intent to injure and actual injury to the client. Congress intended the Investment Advisers Act of 1940 to be construed like other securities legislation "enacted for the purpose of avoiding frauds," 47 not technically and restrictively, but flexibly to effectuate its remedial purposes. II. We turn now to a consideration of whether the specific conduct here in issue was the type which Congress intended to reach in the Investment Advisers Act of 1940. [375 U.S. 180, 196] It is arguable - indeed it was argued by "some investment counsel representatives" who testified before the Commission - that any "trading by investment counselors for their own account in securities in which their clients were interested . . ." 48 creates a potential conflict of interest which must be eliminated. We need not go that far in this case, since here the Commission seeks only disclosure of a conflict of interests with significantly greater potential for abuse than in the situation described above. An adviser who, like respondents, secretly trades on the market effect of his own recommendation may be motivated - consciously or unconsciously - to recommend a given security not because of its potential for long-run price increase (which would profit the client), but because of its potential for short-run price increase in response to anticipated activity from the recommendation (which would profit the adviser). 49 An investor seeking the advice of a registered investment adviser must, if the legislative purpose is to be served, be permitted to evaluate such overlapping motivations, through appropriate disclosure, in deciding whether an adviser is serving "two masters" or only one, "especially . . . if one of the masters happens to be economic self-interest." United States v. Mississippi Valley Co., 364 U.S. 520, 549 . 50 Accordingly, [375 U.S. 180, 197] we hold that the Investment Advisers Act of 1940 empowers the courts, upon a showing such as that made here, to require an adviser to make full and frank disclosure of his practice of trading on the effect of his recommendations. III. Respondents offer three basic arguments against this conclusion. They argue first that Congress could have made, but did not make, failure to disclose material facts unlawful in the Investment Advisers Act of 1940, as it did in the Securities Act of 1933, 51 and that absent specific language, it should not be assumed that Congress intended to include failure to disclose in its general proscription of any practice which operates as a fraud or deceit. But considering the history and chronology of the statutes, this omission does not seem significant. The Securities [375 U.S. 180, 198] Act of 1933 was the first experiment in federal regulation of the securities industry. It was understandable, therefore, for Congress, in declaring certain practices unlawful, to include both a general proscription against fraudulent and deceptive practices and, out of an abundance of caution, a specific proscription against nondisclosure. It soon became clear, however, that the courts, aware of the previously outlined developments in the common law of fraud, were merging the proscription against nondisclosure into the general proscription against fraud, treating the former, in effect, as one variety of the latter. For example, in Securities & Exchange Comm'n v. Torr, 15 F. Supp. 315 (D.C. S. D. N. Y. 1936), rev'd on other grounds, 87 F.2d 446, Judge Patterson held that suppression of information material to an evaluation of the disinterestedness of investment advice "operated as a deceit on purchasers," 15 F. Supp., at 317. Later cases also treated nondisclosure as one variety of fraud or deceit. 52 In light of this, and in light of the evident purpose of the Investment Advisers Act of 1940 to substitute a philosophy of disclosure for the philosophy of caveat emptor, we cannot assume that the omission in the 1940 Act of a specific proscription against nondisclosure was intended to limit the application of the antifraud and antideceit provisions of the Act so as to render the Commission impotent to enjoin suppression of material facts. The more reasonable assumption, considering what had transpired between 1933 and 1940, is that Congress, in enacting the Investment Advisers Act of 1940 and proscribing [375 U.S. 180, 199] any practice which operates "as a fraud or deceit," deemed a specific proscription against nondisclosure surplusage. Respondents also argue that the 1960 amendment 53 to the Investment Advisers Act of 1940 justifies a narrow interpretation of the original enactment. The amendment made two significant changes which are relevant here. "Manipulative" practices were added to the list of those specifically proscribed. There is nothing to suggest, however, that with respect to a requirement of disclosure, "manipulative" is any broader than fraudulent or deceptive. 54 Nor is there any indication that by adding the new proscription Congress intended to narrow the scope of the original proscription. The new amendment also authorizes the Commission "by rules and regulations [to] define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative." The legislative history offers no indication, however, that Congress intended such rules to substitute for the "general and flexible" antifraud provisions which have long been considered necessary to control "the versatile inventions of fraud-doers." 55 Moreover, the intent of Congress must be culled from the events surrounding the passage of [375 U.S. 180, 200] the 1940 legislation. "[O]pinions attributed to a Congress twenty years after the event cannot be considered evidence of the intent of the Congress of 1940." Securities & Exchange Comm'n v. Capital Gains Research Bureau, Inc., 306 F.2d 606, 615 (dissenting opinion). See United States v. Philadelphia Nat. Bank, 374 U.S. 321, 348 -349. Respondents argue, finally, that their advice was "honest" in the sense that they believed it was sound and did not offer it for the purpose of furthering personal pecuniary objectives. This, of course, is but another way of putting the rejected argument that the elements of technical common-law fraud - particularly intent - must be established before an injunction requiring disclosure may be ordered. It is the practice itself, however, with its potential for abuse, which "operates as a fraud or deceit" within the meaning of the Act when relevant information is suppressed. The Investment Advisers Act of 1940 was "directed not only at dishonor, but also at conduct that tempts dishonor." United States v. Mississippi Valley Co., 364 U.S. 520, 549 . Failure to disclose material facts must be deemed fraud or deceit within its intended meaning, for, as the experience of the 1920's and 1930's amply reveals, the darkness and ignorance of commercial secrecy are the conditions upon which predatory practices best thrive. To impose upon the Securities and Exchange Commission the burden of showing deliberate dishonesty as a condition precedent to protecting investors through the prophylaxis of disclosure would effectively nullify the protective purposes of the statute. Reading the Act in light of its background we find no such requirement commanded. Neither the Commission nor the courts should be required "to separate the mental urges," Peterson v. Greenville, 373 U.S. 244, 248 , of an investment adviser, for "[t]he motives of man are too complex [375 U.S. 180, 201] . . . to separate. . . ." Mosser v. Darrow, 341 U.S. 267, 271 . The statute, in recognition of the adviser's fiduciary relationship to his clients, requires that his advice be disinterested. To insure this it empowers the courts to require disclosure of material facts. It misconceives the purpose of the statute to confine its application to "dishonest" as opposed to "honest" motives. As Dean Shulman said in discussing the nature of securities transactions, what is required is "a picture not simply of the show window, but of the entire store . . . not simply truth in the statements volunteered, but disclosure." 56 The high standards of business morality exacted by our laws regulating the securities industry do not permit an investment adviser to trade on the market effect of his own recommendations without fully and fairly revealing his personal interests in these recommendations to his clients. Experience has shown that disclosure in such situations, while not onerous to the adviser, is needed to preserve the climate of fair dealing which is so essential to maintain public confidence in the securities industry and to preserve the economic health of the country. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. [375 U.S. 180, 202] Footnotes [Footnote 1 54 Stat. 847, as amended, 15 U.S.C. 80b-1 et seq. [Footnote 2 54 Stat. 852, as amended, 15 U.S.C. (Supp. IV) 80b-6, provides in relevant part that: "It shall be unlawful for any investment adviser, by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly - "(1) to employ any device, scheme, or artifice to defraud any client or prospective client; [375 U.S. 180, 182] "(2) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client; "(3) acting as principal for his own account, knowingly to sell any security to or purchase any security from a client, or acting as broker for a person other than such client, knowingly to effect any sale or purchase of any security for the account of such client, without disclosing to such client in writing before the completion of such transaction the capacity in which he is acting and obtaining the consent of the client to such transaction. The prohibitions of this paragraph shall not apply to any transaction with a customer of a broker or dealer if such broker or dealer is not acting as an investment adviser in relation to such transaction. . . ." [Footnote 3 54 Stat. 853, as amended, 15 U.S.C. (Supp. IV) 80b-9, provides in relevant part that: "(e) Whenever it shall appear to the Commission that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any provision of this subchapter, or of any rule, regulation, or order hereunder, or that any person has aided, abetted, counselled, commanded, induced, or procured, is aiding, abetting, counselling, commanding, inducing, or procuring, or is about to aid, abet, counsel, command, induce, or procure such a violation, it may in its discretion bring an action in the proper district court of the United States, or the proper United States court of any Territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices and to enforce compliance with this subchapter or any rule, regulation, or order hereunder. Upon a showing that such person has engaged, is engaged, or is about to engage in any such act or practice, or in aiding, abetting, counseling, commanding, inducing, or procuring any such act or practice, a permanent or temporary injunction or decree or restraining order shall be granted without bond." [Footnote 4 See Appendix, infra, p. 202. [Footnote 5 The requested injunction reads in full as follows: "WHEREFORE the plaintiff demands a temporary restraining order, preliminary injunction and final injunction: "1. Enjoining the defendants Capital Gains Research Bureau, Inc. and Harry P. Schwarzmann, their agents, servants, employees, attorneys [375 U.S. 180, 184] and assigns, and each of them, while the said Capital Gains Research Bureau, Inc. is an investment adviser, directly and indirectly, by the use of the mails or any means or instrumentalities of interstate commerce from: "(a) Employing any device, scheme or artifice to defraud any client or prospective client by failing to disclose the material facts concerning "(1) The purchase by defendant, Capital Gains Research Bureau, Inc., of securities within a very short period prior to the distribution of a recommendation by said defendant to its clients and prospective clients for purchase of said securities; "(2) The intent to sell and the sale of said securities by said defendant so recommended to be purchased within a very short period after distribution of said recommendation to its clients and prospective clients; "(3) Effecting of short sales by said defendant within a very short period prior to the distribution of a recommendation by said defendant to its clients and prospective clients to dispose of said securities; "(4) The intent of said defendant to purchase and the purchase of said securities to cover its short sales; "(5) The purchase by said defendant for its own account of puts and calls for securities within a very short period prior to the distribution of a recommendation to its clients and prospective clients for purchase or disposition of said securities. "(b) Engaging in any transaction, practice and course of business which operates as a fraud or deceit upon any client or prospective client by failing to disclose the material facts concerning the matters set forth in demand 1 (a) hereof." [Footnote 6 The case was originally heard before a panel of the Court of Appeals, which, with one judge dissenting, affirmed the District Court. 300 F.2d 745. Rehearing en banc was then ordered. The Court of Appeals purported to recognize that "federal securities laws are to be construed broadly to effectuate their remedial purpose." 306 F.2d 606, 608. But by affirming the District Court's "technical" construction of the Investment Advisers Act of 1940 and by requiring proof of "misstatements," unsound advice, bribery, or intent to unload "worthless stock," the court read the statute, in effect, as confined by traditional common-law concepts of fraud and deceit. [Footnote 7 See generally Douglas and Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171 (1933); Loomis, The Securities Exchange Act of 1934 and the Investment Advisers Act of 1940, 28 Geo. Wash. L. Rev. 214 (1959); Shulman, Civil Liability and the Securities Act, 43 Yale L. J. 227 (1933). Cf. Galbraith, The Great Crash (1955). [Footnote 8 48 Stat. 74, as amended, 15 U.S.C. 77a et seq. [Footnote 9 48 Stat. 881, as amended, 15 U.S.C. 78a et seq. [Footnote 10 49 Stat. 838, as amended, 15 U.S.C. 79 et seq. [Footnote 11 53 Stat. 1149, as amended, 15 U.S.C. 77aaa et seq. [Footnote 12 54 Stat. 789, as amended, 15 U.S.C. 80a-1 et seq. [Footnote 13 See H. R. Rep. No. 85, 73d Cong., 1st Sess. 2, quoted in Wilko v. Swan, 346 U.S. 427, 430 . [Footnote 14 49 Stat. 837, 15 U.S.C. 79z-4. [Footnote 15 While the study concentrated on investment advisory services which provide personalized counseling to investors, see Investment Trusts and Investment Companies, Report of the Securities and Exchange Commission, Pursuant to Section 30 of the Public Utility Holding Company Act of 1935, on Investment Counsel, Investment Management, Investment Supervisory, and Investment Advisory Services, H.R. Doc. No. 477, 76th Cong., 2d Sess., 1 (hereinafter cited as SEC Report) the Senate Committee on Banking and Currency did receive communications from publishers of investment advisory services, see, e. g., Hearings on S. 3580 before Subcommittee of the Senate Committee on Banking and Currency, 76th Cong., 3d Sess., pt. 3 (Exhibits), 1063, and the Act specifically covers "any person who, for compensation, engages in the business of advising others, either directly or through publication or writings. . . ." 54 Stat. 847, 15 U.S.C. 80b-2. [Footnote 16 SEC Report, at 28. [Footnote 17 Id., at 29. [Footnote 18 Id., at 24. [Footnote 19 Ibid. [Footnote 20 Ibid. [Footnote 21 Id., at 66-67. [Footnote 22 Id., at 66. [Footnote 23 Id., at 65. [Footnote 24 Id., at 67. [Footnote 25 Id., at 29. [Footnote 26 Id., at 66. [Footnote 27 Id., at 29-30. (Emphasis added.) [Footnote 28 See text accompanying note 14, supra. [Footnote 29 S. 3580, 76th Cong., 3d Sess. [Footnote 30 Hearings on S. 3580 before Subcommittee of the Senate Committee on Banking and Currency, 76th Cong., 3d Sess. (hereinafter cited as Senate Hearings). Hearings on H. R. 10065 before Subcommittee of the House Committee on Interstate and Foreign Commerce, 76th Cong., 3d Sess. (hereinafter cited as House Hearings). [Footnote 31 Senate Hearings, at 719. [Footnote 32 Id., at 716. [Footnote 33 Id., at 724. [Footnote 34 The bill as enacted did not contain a section attributing specific abuses to the investment adviser profession. This section was eliminated apparently at the urging of the investment advisers who, while not denying that abuses had occurred, attributed them to certain fringe elements in the profession. They feared that a public and general indictment of all investment advisers by Congress would do irreparable harm to their fledgling profession. See, e. g., Senate Hearings, at 715-716. It cannot be inferred, therefore, that the section was eliminated because Congress had concluded that the abuses had not occurred, or because Congress did not desire to prevent their repetition in the future. The more logical inference, considering the legislative background of the Act, is that the section was omitted to avoid condemning an entire profession (which depends for its success on continued public confidence) for the acts of a few. [Footnote 35 H. R. Rep. No. 2639, 76th Cong., 3d Sess. 28 (hereinafter cited as House Report). See also S. Rep. No. 1775, 76th Cong., 3d Sess. 22 (hereinafter cited as Senate Report). [Footnote 36 See Senate Report, at 22. [Footnote 37 Id., at 21. [Footnote 38 2 Loss, Securities Regulation (2d ed. 1961), 1412. [Footnote 39 See cases cited in 37 C. J. S., Fraud (1943), 210. Even in a damage suit between parties to an arm's-length transaction, the intent which must be established need not be an intent to cause injury to the client, as the courts below seem to have assumed. "It is to be noted that it is not necessary that the person making the misrepresentations intend to cause loss to the other or gain a profit for himself; it is only necessary that he intend action in reliance on the truth of his misrepresentations." 1 Harper and James, The Law of Torts (1956), 531. "[T]he fact that the defendant was disinterested, that he had the best of motives, and that he thought he was doing the plaintiff a kindness, will not absolve him from liability so long as he did in fact intend to mislead." Prosser, Law of Torts (1955), 538. See 3 Restatement, Torts (1938), 531, Comment b, illustration 3. It is clear that respondents' failure to disclose the practice here in issue was purposeful, and that they intended that action be taken in reliance on the claimed disinterestedness of the service and its exclusive concern for the clients' interests. [Footnote 40 Neither is this a criminal proceeding for "willfully" violating the Act, 54 Stat. 857, as amended, 15 U.S.C. 80b-17, nor a proceeding to revoke or suspend a registration "in the public interest," 54 Stat. 850, as amended, 15 U.S.C. 80b-3. Other considerations may be relevant in such proceedings. Compare Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284 . [Footnote 41 Hanbury, Modern Equity (8th ed. 1962), 643. See Letter of Lord Hardwicke to Lord Kames, dated June 30, 1759, printed in Parkes, History of the Court of Chancery (1828), 508, quoted in Snell, Principles of Equity (25th ed. 1960), 496: "Fraud is infinite, and were a Court of Equity once to lay down rules, how far they would go, and no farther, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped, and perpetually eluded by new schemes which the fertility of man's invention would contrive." [Footnote 42 De Funiak, Handbook of Modern Equity (2d ed. 1956), 235. [Footnote 43 Moore v. Crawford, 130 U.S. 122, 128 , quoting 1 Story, Equity Jur. 187. [Footnote 44 Prosser, Law of Torts (1955), 534-535 (citing cases). See generally Keeton, Fraud - Concealment and Non-Disclosure, 15 Texas L. Rev. 1. [Footnote 45 1 Harper and James, The Law of Torts (1956), 541. [Footnote 46 See generally Shulman, Civil Liability and the Securities Act, 43 Yale L. J. 227 (1933). [Footnote 47 3 Sutherland, Statutory Construction (3d ed. 1943), 382 et seq. (citing cases). See Note, 38 N.Y.U.L.Rev. 985; Comment, 30 U. of Chi. L. Rev. 121, 131-147. [Footnote 48 See text accompanying note 27, supra. [Footnote 49 For a discussion of the effects of investment advisory service recommendations on the market price of securities, see Note, 51 Calif. L. Rev. 232, 233. [Footnote 50 This Court, in discussing conflicts of interest, has said: "The reason of the rule inhibiting a party who occupies confidential and fiduciary relations toward another from assuming antagonistic positions to his principal in matters involving the subject matter of the trust is sometimes said to rest in a sound public policy, but it also is justified in a recognition of the authoritative declaration that no man can serve two masters; and considering that human nature must be dealt with, the rule does not stop with actual violations of such [375 U.S. 180, 197] trust relations, but includes within its purpose the removal of any temptation to violate them. . . . ". . . In Hazelton v. Sheckells, 202 U.S. 71, 79 , we said: "The objection . . . rests in their tendency, not in what was done in the particular case. . . . The court will not inquire what was done. If that should be improper it probably would be hidden and would not appear.'" United States v. Mississippi Valley Co., 364 U.S. 520, 550 , n. 14. [Footnote 51 48 Stat. 84, as amended, 15 U.S.C. 77q (a), provides: "It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly - "(1) to employ any device, scheme, or artifice to defraud, or "(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." [Footnote 52 See Archer v. Securities & Exchange Comm'n, 133 F.2d 795 (C. A. 8th Cir.), cert. denied, 319 U.S. 767 ; Charles Hughes & Co. v. Securities & Exchange Comm'n, 139 F.2d 434 (C. A. 2d Cir.), cert. denied, 321 U.S. 786 ; Hughes v. Securities & Exchange Comm'n, 85 U.S. App. D.C. 56, 174 F.2d 969; Norris & Hirshberg v. Securities & Exchange Comm'n, 85 U.S. App. D.C. 268, 177 F.2d 228; Speed v. Transamerica Corp., 235 F.2d 369 (C. A. 3d Cir.). [Footnote 53 74 Stat. 887, 15 U.S.C. (Supp. IV) 80b-6 (4). The amendment, as it is relevant here, made it unlawful for an investment adviser: "(4) to engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative. The Commission shall, for the purposes of this paragraph (4) by rules and regulations define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative." [Footnote 54 See, e. g., 48 Stat. 895, as amended, 15 U.S.C. 78o (c) (1), which refers to such devices "as are manipulative, deceptive, or otherwise fraudulent." (Emphasis added.) [Footnote 55 Stonemets v. Head, 248 Mo. 243, 263, 154 S. W. 108, 114. See also note 41, supra. [Footnote 56 Shulman, Civil Liability and the Securities Act, 43 Yale L. J. 227, 242. [375 U.S. 180, 203] MR. JUSTICE HARLAN, dissenting. I would affirm the judgment below substantially for the reasons given by Judge Moore in his opinion for the majority of the Court of Appeals sitting en banc, 306 F.2d 606, and in his earlier opinion for the panel. 300 F.2d 745. A few additional observations are in order. Contrary to the majority, I do not read the Court of Appeals' en banc opinion as holding that either 206 (1) of the Investment Advisers Act of 1940, 54 Stat. 847 (prohibiting the employment of "any device, scheme, or artifice to defraud any client or prospective client"), or 206 (2), 54 Stat. 847 (prohibiting the engaging "in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client"), is confined by traditional common law concepts of fraud and deceit. That court recognized that "federal securities laws are to be construed broadly to effectuate their remedial purpose." 306 F.2d, at 608. It did not hold or intimate that proof of "intent to injure and actual injury to clients" (ante, p. 186) was necessary to make out a case under these sections of the statute. Rather it explicitly observed: "Nor can there be any serious dispute that a relationship of trust and confidence should exist between the advisor and the advised," ibid., thus recognizing that no such proof was required. In effect the Court of Appeals simply held that the terms of the statute require, at least, some proof that an investment adviser's recommendations are not disinterested. I think it clear that what was shown here would not make out a case of fraud or breach of fiduciary relationship under the most expansive concepts of common law or equitable principles. The nondisclosed facts indicate no more than that the respondents personally profited [375 U.S. 180, 204] from the foreseeable reaction to sound and impartial investment advice. 1 The cases cited by the Court (ante, p. 198) are wide of the mark as even a skeletonized statement of them will show. In Securities & Exchange Comm'n v. Torr, 15 F. Supp. 315, reversed on other grounds, 87 F.2d 446, defendants were in effect bribed to recommend a certain stock. Although it was not apparent that they lied in making their recommendations, it was plain that they were motivated to make them by the promise of reward. In the case before us, there is no vestige of proof that the reason for the recommendations was anything other than a belief in the soundness of the investment advice given. Charles Hughes & Co. v. Securities & Exchange Comm'n, 139 F.2d 434, involved sales of stock by customers' men to those ignorant of the market value of the stocks at 16% to 41% above the over-the-counter price. Defendant's employees must have known that the customers would have refused to buy had they been aware of the actual market price. The defendant in Norris & Hirshberg, Inc., v. Securities & Exchange Comm'n, 85 U.S. App. D.C. 268, 177 F.2d 228, dealt in unlisted securities. Most of its customers believed that the firm was acting only on their behalf and that its income was derived from commissions; in fact the firm bought from and sold to its customers, and received its income from mark-ups and mark-downs. The nondisclosure of this basic relationship did not, the court stated, [375 U.S. 180, 205] "necessarily establish that petitioner violated the antifraud provisions of the Securities and Securities Exchange Acts." Id., at 271, 177 F.2d, at 231. Defendant's trading practices, however, were found to establish such a violation; an example of these was the buying of shares of stock from one customer and the selling to another at a substantially higher price on the same day. The opinion explicitly distinguishes between what is necessary to prove common law fraud and the grounds under securities legislation sufficient for revocation of a broker-dealer registration. Id., at 273, 177 F.2d, at 233. Arleen Hughes v. Securities & Exchange Comm'n, 85 U.S. App. D.C. 56, 174 F.2d 969, concerned the revocation of the license of a broker-dealer who also gave investment advice but failed to disclose to customers both the best price at which the securities could be bought in the open market and the price which she had paid for them. Since the court expressly relied on language in statutes and regulations making unlawful "any omission to state a material fact," id., at 63, 174 F.2d, at 976, this case hardly stands for the proposition that the result would have been the same had such provisions been absent. In Speed v. Transamerica Corp., 235 F.2d 369, the controlling stockholder of a corporation made a public offer to buy stock, concealing from the other shareholders information known to it as an insider which indicated the real value of the stock to be considerably greater than the price set by the public offer. Had shareholders been aware of the concealment, they would undoubtedly have refused to sell; as a consequence of selling they suffered ascertainable damages. In Archer v. Securities & Exchange Comm'n 133 F.2d 795, defendant copartners of a company dealing in unlisted securities concealed the name of Claude Westfall, who was found to be in control of the business. Westfall was thereby enabled to defraud the customers of the [375 U.S. 180, 206] brokerage firm of Harris, Upham & Co., for which he worked as a trader. Securities of the customers of the latter firm were bought by defendants' company at under the market level, and defendants' company sold securities to the clients of Harris, Upham & Co. at prices above the market. In all of these cases but Arleen Hughes, which turned on explicit provisions against nondisclosure, the concealment involved clearly reflected dishonest dealing that was vital to the consummation of the relevant transactions. No such factors are revealed by the record in the present case. It is apparent that the Court is able to achieve the result reached today only by construing these provisions of the Investment Advisers Act as it might a pure conflict of interest statute, cf. United States v. Mississippi Valley Co., 364 U.S. 520 , something which this particular legislation does not purport to be. I can find nothing in the terms of the statute or in its legislative history which lends support to the absolute rule of disclosure now established by the Court. Apart from the other factors dealt with in the two opinions of the Court of Appeals, it seems to me especially significant that Congress in enacting the Investment Advisers Act did not include the express disclosure provision found in 17 (a) (2) of the Securities Act of 1933, 48 Stat. 84, 2 even though it did carry over to the Advisers Act the comparable fraud and deceit provisions of the Securities Act. 3 [375 U.S. 180, 207] To attribute the presence of a disclosure provision in the earlier statute to an "abundance of caution" (ante, p. 198) and its omission in the later statute to a congressional belief that its inclusion would be "surplusage" (ante, p. 199) is for me a singularly unconvincing explanation of this controlling difference between the two statutes. 4 However salutary may be thought the disclosure rule now fashioned by the Court, I can find no authority for it either in the statute or in any regulation duly promulgated thereunder by the S. E. C. Only two Terms ago we refused to extend certain provisions of the Securities Exchange Act of 1934 to encompass "policy" considerations at least as cogent as those urged here by the S. E. C. Blau v. Lehman, 368 U.S. 403 . The Court should have exercised the same wise judicial restraint in this case. This is particularly so at this interlocutory stage of the litigation. It is conceivable that at the trial the S. E. C. would have been able to make out a case under the statute construed according to its terms. I respectfully dissent. [Footnote 1 According to respondents' brief (and the fact does not appear to be contested), the annual gross income of Capital Gains Research Bureau from publishing investment information and advice was some $570,000. Even accepting the S. E. C.'s figures, respondents' profit from the trading transactions in question was somewhat less than $20,000. Thus any basis for an inference that respondents' advice was tainted by self-interest, which might have been drawn had respondents' buying and selling activities been more significant, is lacking on this record. [Footnote 2 That section makes it unlawful "to obtain money or property by means of . . . any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading . . . ." [Footnote 3 Section 17 (a) of the 1933 Act makes it unlawful "(1) to employ any device, scheme, or artifice to defraud . . . (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." Compare the language of these provisions with that of 206 (1), (2) of the Investment Advisers Act, supra, p. 203. [Footnote 4 The argument is that by the time of enactment of the Investment Advisers Act in 1940 Congress had become aware that the courts "were merging the proscription against nondisclosure [contained in the 1933 Securities Act] into the general proscription against fraud" also found in the same act. Ante, p. 198. However, the only federal pre-1940 case cited is Securities & Exchange Comm'n v. Torr, ante, p. 198, and supra, p. 204. There the failure of a fiduciary to disclose that his advice was prompted by a "bribe" was equated by the trial judge with deceit. Such a decision can hardly be deemed to establish that any nondisclosure of a fact material to the recipient of investment advice is fraud or deceit. Saying the least, it strains credulity that a provision expressly proscribing material omissions would be thought by Congress to be "surplusage" when it came to enacting the 1940 Act. This is particularly so when it is remembered that violation of the fraud and deceit section is punishable criminally ( 217 of the Investment Advisers Act of 1940, 54 Stat. 857); Congress must have known that the courts do not favor expansive constructions of criminal statutes. [375 U.S. 180, 208]

liberal

organization

economic_activity

1963-117-01

United States Supreme Court GRIFFIN v. SCHOOL BOARD(1964) No. 592 Argued: March 30, 1964Decided: May 25, 1964 This litigation began in 1951 and resulted in this Court's holding in Brown v. Board of Education, 347 U.S. 483 (1954), that Virginia school segregation laws denied the equal protection of the laws and, after reargument on the question of relief, the remand to the District Court a year later for entry of an order that the Negro complainants in Prince Edward County be admitted to public schools on a racially nondiscriminatory basis "with all deliberate speed." Faced with an order to desegregate, the County Board of Supervisors in 1959 refused to appropriate funds for the operation of public schools although a private foundation operated schools for white children only, who in 1960 became eligible for county and state tuition grants. Public schools continued to operate elsewhere in Virginia. After protracted litigation in the federal and state courts, the District Court in 1961 enjoined the County from paying tuition grants or giving tax credits as long as the public schools remained closed and thereafter, refusing to abstain pending proceedings in the state courts, held that the public schools could not remain closed to avoid this Court's decision while other public schools in the State remained open. The Court of Appeals reversed, holding that the District Court should have awaited state court determination of these issues. Held: 1. Though the amended supplemental complaint added new parties and relied on developments occurring after the action had begun, it did not present a new cause of action but constituted a proper amendment under Rule 15 (d) of the Federal Rules of Civil Procedure, since the new transactions were alleged to be part of persistent and continuing efforts to circumvent this Court's holdings. Pp. 226-227. 2. Since the supplemental complaint alleged a discriminatory system unique to one county, although involving some actions of the State, adjudication by a three-judge court was not required under 28 U.S.C. 2281. Pp. 227-228. [377 U.S. 218, 219] 3. This action is not forbidden by the Eleventh Amendment to the Constitution since it charges that state and county officials deprived petitioners of their constitutional rights. Ex parte Young, 209 U.S. 123 (1908), followed. P. 228. 4. Because of the long delay resulting from state and county resistance to enforcing the constitutional rights here involved and because the highest state court has now passed on all the state law issues here, federal court abstention pending state judicial resolution of the legality of respondents' conduct under the constitution and laws of Virginia is not required or appropriate in this case. Pp. 228-229. 5. Under the circumstances of this case, closing of the Prince Edward County public schools while at the same time giving tuition grants and tax concessions to assist white children in private segregated schools denied petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment. Pp. 229-232. (a) Prince Edward County school children are treated differently from those of other counties since they must go to private schools or none at all. P. 230. (b) The public schools of Prince Edward County were closed and the private schools operated in their place only for constitutionally impermissible reasons of race. Pp. 231-232. 6. Quick and effective injunctive relief should be granted against the respondents, all of whom have duties relating to financing, supervising, or operating the Prince Edward County schools. Pp. 232-234. (a) The injunction against county officials paying tuition grants and giving tax credits while public schools remained closed is appropriate and necessary where the grants and credits have been part of the county program to deprive petitioners of a public education enjoyed by children in other counties. P. 233. (b) The District Court may require the County Supervisors to levy taxes to raise funds for the nonracial operation of the county school system as is the case with other counties. P. 233. (c) The District Court may if necessary issue an order to carry out its ruling that the Prince Edward County public schools may not be closed to avoid the law of the land while the State permits other public schools to remain open at the expense of the taxpayers. Pp. 233-234. (d) New parties may be added if necessary to effectuate the District Court's decree. P. 234. 322 F.2d 332, reversed. [377 U.S. 218, 220] Robert L. Carter argued the cause for petitioners. With him on the brief were S. W. Tucker and Frank D. Reeves. R. D. McIlwaine III, Assistant Attorney General of Virginia, and J. Segar Gravatt argued the cause for respondents. With Mr. McIlwaine on the brief for the State Board of Education of Virginia et al. were Robert Y. Button, Attorney General of Virginia, and Frederick T. Gray. With Mr. Gravatt on the brief for the Board of Supervisors of Prince Edward County was William F. Watkins, Jr. John F. Kay, Jr. and C. F. Hicks filed a brief for respondents County School Board of Prince Edward County et al. Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Marshall, William J. Vanden Heuvel, Louis F. Claiborne and Harold H. Greene. Briefs of amici curiae, urging reversal, were filed by William B. Beebe and Hershel Shanks for the National Education Association, and by Landon Gerald Dowdey, T. Raber Taylor and C. Joseph Danahy for Citizens for Educational Freedom. Brief of amicus curiae, urging affirmance, was filed by Geo. Stephen Leonard, Paul D. Summers, Jr., D. B. Marshall and Richard L. Hirshberg for the City of Charlottesville. MR. JUSTICE BLACK delivered the opinion of the Court. This litigation began in 1951 when a group of Negro school children living in Prince Edward County, Virginia, filed a complaint in the United States District Court for the Eastern District of Virginia alleging that they had been denied admission to public schools attended by white children and charging that Virginia laws requiring such school segregation denied complainants the equal protection [377 U.S. 218, 221] of the laws in violation of the Fourteenth Amendment. On May 17, 1954, ten years ago, we held that the Virginia segregation laws did deny equal protection. Brown v. Board of Education, 347 U.S. 483 (1954). On May 31, 1955, after reargument on the nature of relief, we remanded this case, along with others heard with it, to the District Courts to enter such orders as "necessary and proper to admit [complainants] to public schools on a racially nondiscriminatory basis with all deliberate speed . . . ." Brown v. Board of Education, 349 U.S. 294, 301 (1955). Efforts to desegregate Prince Edward County's schools met with resistance. In 1956 Section 141 of the Virginia Constitution was amended to authorize the General Assembly and local governing bodies to appropriate funds to assist students to go to public or to nonsectarian private schools, in addition to those owned by the State or by the locality. 1 The General Assembly met in special session and enacted legislation to close any public schools where white and colored children were enrolled together, to cut off state funds to such schools, to pay tuition grants to children in nonsectarian private schools, and to extend state retirement benefits to teachers in newly created private schools. 2 The legislation closing mixed schools and cutting off state funds was later invalidated by the Supreme Court of Appeals of Virginia, which held that these laws violated the Virginia Constitution. Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 (1959). In April 1959 the General Assembly abandoned "massive resistance" to desegregation and turned instead to what was [377 U.S. 218, 222] called a "freedom of choice" program. The Assembly repealed the rest of the 1956 legislation, as well as a tuition grant law of January 1959, and enacted a new tuition grant program. 3 At the same time the Assembly repealed Virginia's compulsory attendance laws 4 and instead made school attendance a matter of local option. 5 In June 1959, the United States Court of Appeals for the Fourth Circuit directed the Federal District Court (1) to enjoin discriminatory practices in Prince Edward County schools, (2) to require the County School Board to take "immediate steps" toward admitting students without regard to race to the white high school "in the school term beginning September 1959," and (3) to require the Board to make plans for admissions to elementary schools without regard to race. Allen v. County School Board of Prince Edward County, 266 F.2d 507, 511 (C. A. 4th Cir. 1959). Having as early as 1956 resolved that they would not operate public schools "wherein white and colored children are taught together," the Supervisors of Prince Edward County refused to levy any school taxes for the 1959-1960 school year, explaining that they were "confronted with a court decree which requires the admission of white and colored children to all the schools of the county without regard to race or color." 6 As a result, the county's public schools did not [377 U.S. 218, 223] reopen in the fall of 1959 and have remained closed ever since, although the public schools of every other county in Virginia have continued to operate under laws governing the State's public school system and to draw funds provided by the State for that purpose. A private group, the Prince Edward School Foundation, was formed to operate private schools for white children in Prince Edward County and, having built its own school plant, has been in operation ever since the closing of the public schools. An offer to set up private schools for colored children in the county was rejected, the Negroes of Prince Edward preferring to continue the legal battle for desegregated public schools, and colored children were without formal education from 1959 to 1963, when federal, state, and county authorities cooperated to have classes conducted for Negroes and whites in school buildings owned by the county. During the 1959-1960 school year the Foundation's schools for white children were supported entirely by private contributions, but in 1960 the General Assembly adopted a new tuition grant program making every child, regardless of race, eligible for tuition grants of $125 or $150 to attend a nonsectarian private school or a public school outside his locality, and also authorizing localities to provide their own grants. 7 The Prince Edward Board of Supervisors then passed an ordinance providing tuition grants of $100, so that each child attending the Prince Edward School Foundation's schools received a total of $225 if in elementary school or $250 if in high school. In the 1960-1961 session the major source of financial support for the Foundation was in the indirect form of these state and county tuition grants, paid to children attending Foundation schools. At the same time, the County Board of Supervisors passed an ordinance allowing property tax credits up to 25% for [377 U.S. 218, 224] contributions to any "nonprofit, nonsectarian private school" in the county. In 1961 petitioners here filed a supplemental complaint, adding new parties and seeking to enjoin the respondents from refusing to operate an efficient system of public free schools in Prince Edward County and to enjoin payment of public funds to help support private schools which excluded students on account of race. The District Court, finding that "the end result of every action taken by that body [Board of Supervisors] was designed to preserve separation of the races in the schools of Prince Edward County," enjoined the county from paying tuition grants or giving tax credits so long as public schools remained closed. 8 Allen v. County School Board of Prince Edward County, 198 F. Supp. 497, 503 (D.C. E. D. Va. 1961). At this time the District Court did not pass on whether the public schools of the county could be closed but abstained pending determination by the Virginia courts of whether the constitution and laws of Virginia required the public schools to be kept open. Later, however, without waiting for the Virginia courts to decide the question, 9 the District Court held that "the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers." Allen v. County School Board of Prince Edward [377 U.S. 218, 225] County, 207 F. Supp. 349, 355 (D.C. E. D. Va. 1962). Soon thereafter, a declaratory judgment suit was brought by the County Board of Supervisors and the County School Board in a Virginia Circuit Court. Having done this, these parties asked the Federal District Court to abstain from further proceedings until the suit in the state courts had run its course, but the District Court declined; it repeated its order that Prince Edward's public schools might not be closed to avoid desegregation while the other public schools in Virginia remained open. The Court of Appeals reversed, Judge Bell dissenting, holding that the District Court should have abstained to await state court determination of the validity of the tuition grants and the tax credits, as well as the validity of the closing of the public schools. Griffin v. Board of Supervisors of Prince Edward County, 322 F.2d 332 (C. A. 4th Cir. 1963). We granted certiorari, stating: 10 "In view of the long delay in the case since our decision in the Brown case and the importance of the questions presented, we grant certiorari and put the case down for argument March 30, 1964, on the merits, as we have done in other comparable situations without waiting for final action by the Court of Appeals." 375 U.S. 391, 392 . For reasons to be stated, we agree with the District Court that, under the circumstances here, closing the Prince Edward County schools while public schools in all the other counties of Virginia were being maintained denied the petitioners and the class of Negro students they represent the equal protection of the laws guaranteed by the Fourteenth Amendment. [377 U.S. 218, 226] I. Before reaching the substantial questions presented, we shall note several procedural matters urged by respondents in a motion to dismiss the supplemental amended complaint filed July 7, 1961 - ten years after this action was instituted. Had the motion to dismiss been granted on any of the grounds assigned, the result would have been one more of what Judge Bell, dissenting in the Court of Appeals, referred to as "the inordinate delays which have already occurred in this protracted litigation . . . ." 322 F.2d, at 344. We shall take up separately the grounds assigned for dismissal. (a) It is contended that the amended supplemental complaint presented a new and different cause of action from that presented in the original complaint. The supplemental pleading did add new parties and rely in good part on transactions, occurrences, and events which had happened since the action had begun. But these new transactions were alleged to have occurred as a part of continued, persistent efforts to circumvent our 1955 holding that Prince Edward County could not continue to operate, maintain, and support a system of schools in which students were segregated on a racial basis. The original complaint had challenged racial segregation in schools which were admittedly public. The new complaint charged that Prince Edward County was still using its funds, along with state funds, to assist private schools while at the same time closing down the county's public schools, all to avoid the desegregation ordered in the Brown cases. The amended complaint thus was not a new cause of action but merely part of the same old cause of action arising out of the continued desire of colored students in Prince Edward County to have the same opportunity for state-supported education afforded to white people, a desire thwarted before 1959 by segregation [377 U.S. 218, 227] in the public schools and after 1959 by a combination of closed public schools and state and county grants to white children at the Foundation's private schools. Rule 15 (d) of the Federal Rules of Civil Procedure plainly permits supplemental amendments to cover events happening after suit, 11 and it follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice. (b) When this action was originally brought in 1951, it broadly charged that the constitution and laws of Virginia provided a state system of public schools which unconstitutionally segregated school children on the basis of color. This challenge was heard by a District Court of three judges as required by 28 U.S.C. 2281. When in Brown we held the school segregation laws invalid as a denial of equal protection of the laws under the Fourteenth Amendment and remanded for the District Court to fashion a decree requiring abandonment of segregation "with all deliberate speed," the three-judge court ceased to function, and a single district judge took over. Respondents contend that the single judge erroneously passed on the issues raised by the supplemental complaint and that we should now delay the case still further by vacating his judgment along with that of the Court of Appeals and remanding to the District Court for a completely new trial before three judges. We reject the contention. In Rorick v. Board of Comm'rs of Everglades Drainage Dist., 307 U.S. 208, 212 (1939), we said, in interpreting the three-judge statute (then 266 of the [377 U.S. 218, 228] Judicial Code of 1911, as amended, 28 U.S.C. (1934 ed.) 380): "`Despite the generality of the language' of that Section, it is now settled doctrine that only a suit involving `a statute of general application' and not one affecting a `particular municipality or district' can invoke 266." While a holding as to the constitutional duty of the Supervisors and other officials of Prince Edward County may have repercussions over the State and may require the District Court's orders to run to parties outside the county, it is nevertheless true that what is attacked in this suit is not something which the State has commanded Prince Edward to do - close its public schools and give grants to children in private schools - but rather something which the county with state acquiescence and cooperation has undertaken to do on its own volition, a decision not binding on any other county in Virginia. Even though actions of the State are involved, the case, as it comes to us, concerns not a state-wide system but rather a situation unique to Prince Edward County. We hold that the single district judge did not err in adjudicating this present controversy. (c) It is contended that the case is an action against the State, is forbidden by the Eleventh Amendment, and therefore should be dismissed. The complaint, however, charged that state and county officials were depriving petitioners of rights guaranteed by the Fourteenth Amendment. It has been settled law since Ex parte Young, 209 U.S. 123 (1908), that suits against state and county officials to enjoin them from invading constitutional rights are not forbidden by the Eleventh Amendment. (d) It is argued that the District Court should have abstained from passing on the issues raised here in order to await a determination by the Supreme Court of Appeals of Virginia as to whether the conduct complained [377 U.S. 218, 229] of violated the constitution or laws of Virginia. The Court of Appeals so held, 322 F.2d 332, and this Court has, in cases deemed appropriate, directed that such a course be followed by a district court or approved its having been followed. E. g., Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). But we agree with the dissenting judge in the Court of Appeals, 322 F.2d, at 344-345, that this is not a case for abstention. In the first place, the Supreme Court of Appeals of Virginia has already passed upon the state law with respect to all the issues here. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963). But quite independently of this, we hold that the issues here imperatively call for decision now. The case has been delayed since 1951 by resistance at the state and county level, by legislation, and by lawsuits. The original plaintiffs have doubtless all passed high school age. There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children. We accordingly reverse the Court of Appeals' judgment remanding the case to the District Court for abstention, and we proceed to the merits. II. In County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963), the Supreme Court of Appeals of Virginia upheld as valid under state law the closing of the Prince Edward County public schools, the state and county tuition grants for children who attend private schools, and the county's tax concessions for those who make contributions to private schools. The same opinion also held that each county had "an option to operate or not to operate public [377 U.S. 218, 230] schools." 204 Va., at 671, 133 S. E. 2d, at 580. We accept this case as a definitive and authoritative holding of Virginia law, binding on us, but we cannot accept the Virginia court's further holding, based largely on the Court of Appeals' opinion in this case, 322 F.2d 332, that closing the county's public schools under the circumstances of the case did not deny the colored school children of Prince Edward County equal protection of the laws guaranteed by the Federal Constitution. Since 1959, all Virginia counties have had the benefits of public schools but one: Prince Edward. However, there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws "between persons as such rather than between areas." Salsburg v. Maryland, 346 U.S. 545, 551 (1954). Indeed, showing that different persons are treated differently is not enough, without more, to show a denial of equal protection. Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). It is the circumstances of each case which govern. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 539 -540 (1942). Virginia law, as here applied, unquestionably treats the school children of Prince Edward differently from the way it treats the school children of all other Virginia counties. Prince Edward children must go to a private school or none at all; all other Virginia children can go to public schools. Closing Prince Edward's schools bears more heavily on Negro children in Prince Edward County since white children there have accredited private schools which they can attend, while colored children until very recently have had no available private schools, and even the school they now attend is a temporary expedient. Apart from this expedient, the result is that Prince Edward County school children, if they go to school in their own county, must go to racially segregated schools which, although [377 U.S. 218, 231] designated as private, are beneficiaries of county and state support. A State, of course, has a wide discretion in deciding whether laws shall operate statewide or shall operate only in certain counties, the legislature "having in mind the needs and desires of each." Salsburg v. Maryland, supra, 346 U.S., at 552 . A State may wish to suggest, as Maryland did in Salsburg, that there are reasons why one county ought not to be treated like another. 346 U.S., at 553 -554. But the record in the present case could not be clearer that Prince Edward's public schools were closed and private schools operated in their place with state and county assistance, for one reason, and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional. 12 In Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (D.C. E. D. La. 1961), a three-judge District Court invalidated a Louisiana statute which provided "a means by which public schools under desegregation orders may be changed to `private' schools operated in the same way, in the same buildings, with the same furnishings, with the same money, and under the same supervision as the public schools." Id., at 651. In addition, that statute also provided that where the public schools were "closed," the school board was "charged with responsibility for furnishing free lunches, transportation, and grants-in-aid to the [377 U.S. 218, 232] children attending the `private' schools." Ibid. We affirmed the District Court's judgment invalidating the Louisiana statute as a denial of equal protection. 368 U.S. 515 (1962). While the Louisiana plan and the Virginia plan worked in different ways, it is plain that both were created to accomplish the same thing: the perpetuation of racial segregation by closing public schools and operating only segregated schools supported directly or indirectly by state or county funds. See Cooper v. Aaron, 358 U.S. 1, 17 (1958). Either plan works to deny colored students equal protection of the laws. Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws. III. We come now to the question of the kind of decree necessary and appropriate to put an end to the racial discrimination practiced against these petitioners under authority of the Virginia laws. That relief needs to be quick and effective. The parties defendant are the Board of Supervisors, School Board, Treasurer, and Division Superintendent of Schools of Prince Edward County, and the State Board of Education and the State Superintendent of Education. All of these have duties which relate directly or indirectly to the financing, supervision, or operation of the schools in Prince Edward County. The Board of Supervisors has the special responsibility to levy local taxes to operate public schools or to aid children attending the private schools now functioning there for white children. The District Court enjoined the county officials from paying county tuition grants or giving tax exemptions and from processing applications for state tuition grants so long as the county's public schools remained closed. We have no doubt of the power of the [377 U.S. 218, 233] court to give this relief to enforce the discontinuance of the county's racially discriminatory practices. It has long been established that actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights. E. g., Lincoln County v. Luning, 133 U.S. 529 (1890); Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 579 (1946). The injunction against paying tuition grants and giving tax credits while public schools remain closed is appropriate and necessary since those grants and tax credits 13 have been essential parts of the county's program, successful thus far, to deprive petitioners of the same advantages of a public school education enjoyed by children in every other part of Virginia. For the same reasons the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia. The District Court held that "the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers." Allen v. County School Board of Prince Edward County, 207 F. Supp. 349, 355 (D.C. E. D. Va. 1962). At the same time the court gave notice that it would later consider an order to accomplish this purpose if the public schools were not reopened by September 7, 1962. That day has long passed, and the schools are still closed. On remand, therefore, the court may find it necessary to consider further such an order. An order of this kind is within the court's power if required [377 U.S. 218, 234] to assure these petitioners that their constitutional rights will no longer be denied them. The time for mere "deliberate speed" has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia. The judgment of the Court of Appeals is reversed, the judgment of the District Court is affirmed, and the cause is remanded to the District Court with directions to enter a decree which will guarantee that these petitioners will get the kind of education that is given in the State's public schools. And, if it becomes necessary to add new parties to accomplish this end, the District Court is free to do so. It is so ordered. MR. JUSTICE CLARK and MR. JUSTICE HARLAN disagree with the holding that the federal courts are empowered to order the reopening of the public schools in Prince Edward County, but otherwise join in the Court's opinion. Footnotes [Footnote 1 Virginia tuition grants originated in 1930 as aid to children who had lost their fathers in World War I. The program was expanded until the Supreme Court of Appeals of Virginia held that giving grants to children attending private schools violated the Virginia Constitution. Almond v. Day, 197 Va. 419, 89 S. E. 2d 851 (1955). It was then that Section 141 was amended. [Footnote 2 Va. Code, 22-188.3 et seq.; 51-111.38:1. [Footnote 3 Acts, 1959 Ex. Sess., c. 53. [Footnote 4 Va. Code, 22-251 to 22-275. [Footnote 5 Va. Code, 22-275.1 to 22-275.25. [Footnote 6 The Board's public explanation of its June 3, 1959, refusal to appropriate money or levy taxes to carry on the county's public school system was: "The School Board of this county is confronted with a court decree which requires the admission of white and colored children to all the schools of the county without regard to race or color. Knowing the people of this county as we do, we know that it is not possible to operate the schools of this county within the terms of that principle and, at the same time, maintain an atmosphere conducive to the educational benefit of our people." [Footnote 7 Va. Code, 22-115.29 to 22-115.35. [Footnote 8 On the question of the validity of state tuition grants, the court held that, as a matter of state law, such grants were not meant to be given in localities without public schools; therefore, the court enjoined the county from processing applications for state grants so long as public schools remained closed. 198 F. Supp., at 504. [Footnote 9 The Supreme Court of Appeals of Virginia had, in a mandamus proceeding instituted by petitioners, held that the State Constitution and statutes did not impose upon the County Board of Supervisors any mandatory duty to levy taxes and appropriate money to support free public schools. Griffin v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S. E. 2d 227 (1962). [Footnote 10 In the meantime, the Supreme Court of Appeals of Virginia had held that the Virginia Constitution did not compel the State to reopen public schools in Prince Edward County. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963). [Footnote 11 "Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed. Rules Civ. Proc. 15 (d). [Footnote 12 "But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, 349 U.S. 294, 300 (1955). [Footnote 13 The county has, since the time of the District Court's decree, repealed its tax credit ordinance. [377 U.S. 218, 235]

liberal

public_entity

civil_rights

1954-095-01

United States Supreme Court ELLIS v. DIXON(1955) No. 20 Argued: October 18, 1954Decided: June 6, 1955 This Court granted certiorari to consider petitioner's claim that his organization had been denied federal constitutional rights and that the New York State courts had ruled adversely on this claim in sustaining dismissal of his suit. Upon reargument, it appeared that petitioner's pleadings had failed to lay a sufficient foundation for a decision on a claim of denial of federal constitutional rights and that dismissal of his suit by the New York courts might have rested upon this adequate nonfederal ground. Held: The writ of certiorari is dismissed as improvidently granted. Pp. 459-464. (a) It will not be assumed on this record that, in denying, without opinion, petitioner's application for leave to appeal, the New York Court of Appeals desired to thwart a review of petitioner's claim of denial of federal constitutional rights. Pp. 462-463. (b) If the insufficiency of petitioner's pleading to assert a federal right was the reason for the Court of Appeals' denial of leave to appeal, that determination would not conclude this Court. P. 463. (c) The record in this case is inadequate as a basis for a decision by this Court on the constitutional issues sought to be presented. Pp. 462, 464. (d) In the circumstances of this case, dismissal of the writ of certiorari is based on lack of jurisdiction, since the Court of Appeals' denial of leave to appeal might have rested on an adequate nonfederal ground. P. 464. Writ of certiorari dismissed. Emanuel Redfield argued the cause and filed the briefs for petitioner. J. Raymond Hannon argued the cause for respondents. With him on the brief was John Preston Phillips. [349 U.S. 458, 459] Daniel T. Scannell argued the cause for the City of New York, as amicus curiae, urging affirmance. With him on the briefs were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy. MR. JUSTICE HARLAN delivered the opinion of the Court. Upon reargument the Court has come to the conclusion that the writ of certiorari 1 should be dismissed as improvidently granted. The New York Court of Appeals denied petitioner's motion for leave to appeal without stating any ground for its decision. 306 N. Y. 981. In these circumstances we must ascertain whether that court's decision "might" have rested on a nonfederal ground, for if it did we must decline to take jurisdiction. Stembridge v. Georgia, 343 U.S. 541, 547 (1952); see also Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54 (1934). We approach the matter first by considering what the petitioner has alleged as a basis for the constitutional issues which he asks us to review on the merits. The constitutional questions involved are whether respondents, members of the Yonkers Board of Education, in refusing the use of any of the Yonkers public school buildings to the Yonkers Committee for Peace for a forum on "peace and war," discriminated against the Committee, so as to deprive the Committee's members of their rights of freedom of speech, assembly, and equal protection of the laws, under the First and Fourteenth Amendments. Petitioner concedes that a State may withhold its school facilities altogether from use by nonscholastic groups. It is implicit in this concession that petitioner also recognizes that a State may make reasonable classifications [349 U.S. 458, 460] in determining the extent to which its schools shall be available for nonscholastic uses, and petitioner has not attacked on this score the classifications made by the applicable New York statute and respondents' regulations. 2 The question of whether the regulations are unconstitutionally vague was not raised below, and hence is not open here. Therefore the burden of petitioner's grievance would seem to be that respondents have applied the statute and regulations to similar groups differently than they have to the Committee for Peace. And yet petitioner has failed to allege in his pleading, which upon respondents' motion was dismissed prior to answer, that other organizations of a similar character to the Committee for Peace have been allowed use of the Yonkers schools. The allegations of that pleading simply are that unnamed and undescribed "organizations" have been allowed to use Yonkers school buildings in the past "for the purpose of public assembly and discussion." 3 [349 U.S. 458, 461] Whether such organizations are in any way comparable to the Committee for Peace nowhere appears in the pleading. 4 And what the practice of the Board of Education has been in permitting the nonscholastic use of school buildings is not shown. [349 U.S. 458, 462] What has been alleged is entirely too amorphous to permit adjudication of the constitutional issues asserted. And we think the most reasonable inference from this record is that the Court of Appeals' denial of petitioner's motion for leave to appeal went on that ground, rather than on the ground, suggested on behalf of respondents, that in proceeding by way of leave to appeal rather than by an appeal as of right the petitioner had followed the wrong appellate route. 5 This conclusion is fortified by two additional circumstances. If the Court of Appeals had considered the constitutional issues adequately presented, it presumably would have saved petitioner's right to appeal as of right by putting its denial of leave to appeal on the ground that an appeal lay as of right. See N. Y. Civ. Prac. Act, 592 (5) (a). 6 Otherwise we would [349 U.S. 458, 463] have to assume that the Court of Appeals desired to thwart review of the constitutional questions, an assumption wholly unjustified by this record. Furthermore, the decision of New York's intermediate appellate court against the petitioner was because of the insufficiency of his pleading. 7 If the insufficiency of petitioner's pleading was the reason for the Court of Appeals' denial of leave to appeal, the past decisions of this Court still leave room for argument as to whether we should dismiss for lack of jurisdiction because the state court's decision rested on an adequate nonfederal ground. It is established law that this Court is not finally concluded by the state court's determination as to the sufficiency of pleadings asserting a federal right. Some of the cases seem to suggest that the scope of our review is limited to determining whether the state court has by-passed the federal right under forms of local procedure, from which it would seem to follow that if we find that such is not the case we should dismiss for want of jurisdiction. Cf. American Railway Express Co. v. Levee, 263 U.S. 19, 21 (1923); Davis v. Wechsler, 263 U.S. 22, 24 (1923). There can be no suggestion of by-passing in this instance. Other cases, however, indicate that we should accept jurisdiction and decide the sufficiency of the pleadings de novo for ourselves. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 180 (1892); Carter v. Texas, 177 U.S. 442, 447 (1900); First National Bank v. Anderson, 269 U.S. 341, 346 (1926); Brown v. Western Railway of Alabama, 338 U.S. 294, 296 (1949). In the present case, the route which we travel would make [349 U.S. 458, 464] no difference in the result. Even if we were to look at the matter ourselves de novo, we could not on this vague and empty record decide the constitutional issues sought to be presented. This Court has often refused to decide constitutional questions on an inadequate record. See, e. g., International Brotherhood of Teamsters v. Denver Milk Producers, Inc., 334 U.S. 809 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 575 -585 (1947); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 762 -763 (1947); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). In the circumstances of this case, we prefer to rest our decision on the ground that we lack jurisdiction. For if we could not ourselves decide on this record the constitutional issues tendered, we consider that by the same token the New York Court of Appeals was entirely justified in refusing to pass on them, and that we should therefore regard its denial of leave to appeal as resting on an adequate nonfederal ground. See Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U.S. 359 (1907); Brinkmeier v. Missouri P. R. Co., 224 U.S. 268 (1912). We conclude that the writ of certiorari must be dismissed as improvidently granted. Dismissed. THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK dissent, believing that the allegations of the petition are sufficient to state a case of discrimination under the Equal Protection Clause. Footnotes [Footnote 1 Certiorari was granted. 347 U.S. 926 . The case was set for reargument both on the merits and as to the jurisdiction of this Court. 348 U.S. 881 . [Footnote 2 The state statute, insofar as applicable here, allows each board of education to adopt reasonable regulations for the use of school property, when not in use for school purposes, for any of the following purposes: "For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community . . .," "For meetings, entertainments and occasions where admission fees are charged, when the proceeds thereof are to be expended for an educational or charitable purpose . . ." and "For civic forums and community centers. . . ." N. Y. Education Law, 414 (3), (4), (6). It is not clear whether this last use is restricted by subsequent language in the section so as to permit only such forums as are established by the board of education. The regulations adopted by respondents do not enlarge upon these classifications in the statute. [Footnote 3 After reciting the respondents' refusal to permit the Committee for Peace to use any of the Yonkers school buildings on two occasions in 1952, the petition goes on to allege: "14. That pursuant to Section 414 of the Education Law of the State of New York, the respondents, and/or their predecessors, as members of the Board of Education of the City of Yonkers, adopted [349 U.S. 458, 461] regulations for the use of the schoolhouses, grounds or other property when not in use for school purposes in Yonkers, New York, whereby organizations at all times herein mentioned were and are permitted the use of the school buildings when not in use. "15. That at all times herein mentioned and at all times since the adoption of the aforesaid regulations, the school buildings, grounds and property of and in the City of Yonkers have on numerous occasions (whose number are best known to respondents and at such numerous times and occasions that the practice is an accepted practice) been permitted to be used pursuant to Section 414 of the Education Law by organizations for the purpose of public assembly and discussion. "16. That at no time herein mentioned did the respondents inform petitioner of the reason for the denial of his application, nor did they ask petitioner or his organization to fulfill any further requirements or conditions for permission to use by them of a school building in Yonkers, New York, for purposes of public assembly or discussion. "17. That by reason of the action of the respondents in failing to give a reason for its action whereas permission is freely granted to others applying, it is evident that the respondents are concealing a design to discriminate against petitioner and his said organization, for which discrimination there is no foundation in law or fact, and that the acts of respondents are arbitrary and unreasonable. "18. The action of respondents violates the right of petitioner and the constituent members of his organization of freedom of speech and assembly guaranteed by the Constitution of the United States and denies them the equal protection of the laws in violation of the Constitution of the United States." [Footnote 4 It may be noted that in an affidavit in support of the motion for leave to appeal to the Court of Appeals, petitioner's attorney sought to remedy this vital defect by including the assertion, "that other organizations similar to petitioner's have obtained similar use" of the schools from the Yonkers Board of Education. But it does not appear that petitioner ever sought to amend his pleading in these respects. [Footnote 5 New York has two methods of appeal to the Court of Appeals - an appeal as of right and by leave to appeal. An appeal as of right lies, inter alia, where there is "directly involved the construction of the constitution of the state or of the United States . . . ." N. Y. Const., Art. VI, 7 (1); N. Y. Civ. Prac. Act, 588 (1) (a). In all cases in which an appeal does not lie as of right, appeal is by leave of the Appellate Division or the Court of Appeals. N. Y. Const., Art. VI, 7 (6); N. Y. Civ. Prac. Act, 589. Had wrong appellate procedure been the reason for the Court of Appeals' denial of leave to appeal, its decision would have rested on an adequate nonfederal ground, depriving this Court of jurisdiction. Cf. Parker v. Illinois, 333 U.S. 571 (1948); Central Union Telephone Co. v. City of Edwardsville, 269 U.S. 190 (1925). [Footnote 6 This section provides that when leave to appeal is denied "upon the ground that the appeal would lie as of right," the appellant is automatically entitled to an additional 30 days after the denial to file an appeal as of right. The Court of Appeals has thus stated its ground of denial in many instances where leave to appeal was denied because an appeal lay as of right. See, e. g., In re Arbitration between E. Milius & Co. and Regal Shirt Corp., 305 N. Y. 562, 111 N. E. 2d 438 (1953); In re Brinn, 305 N. Y. 626, 111 N. E. 2d 738 (1953); In re Wuttke, 305 N. Y. 694, 112 N. E. 2d 777 (1953); In re Hecht, 305 N. Y. 800, 113 N. E. 2d 553 (1953); Auten v. Auten, 306 N. Y. 752, 118 N. E. 2d 110 (1954). [Footnote 7 In affirming the judgment of the court of first instance, the Appellate Division of the Supreme Court, Second Department, stated: "The proceeding was properly before the court. However, the petition does not allege facts which establish a clear legal right to the relief sought nor which establish that respondents failed to perform a duty enjoined by law." 281 App. Div. 987, 120 N. Y. S. 2d 854. [349 U.S. 458, 1]

conservative

public_entity

judicial_power

1958-089-02

United States Supreme Court T. I. M. E. INC. v. UNITED STATES(1959) No. 68 Argued: January 20, 1959Decided: May 18, 1959 A shipper of goods by a motor carrier certificated by the Interstate Commerce Commission under the Motor Carrier Act of 1935 cannot challenge in post-shipment litigation the reasonableness of the carrier's past charges, which were made in accordance with the applicable tariffs filed under 217 of the Act. Pp. 465-480. (a) The structure and history of Part II of the Interstate Commerce Act (the Motor Carrier Act) - when compared with Parts I and III, which expressly grant such rights to shippers by rail and water - lead to the conclusion that 216 (b) and (d) were not intended to give shippers by motor carriers a statutory cause of action for recovery of past charges at allegedly unreasonable rates or to enable them to assert "unreasonableness" as a defense in suits by motor carriers to recover past charges at applicable tariff rates. Pp. 468-472. (b) The Motor Carrier Act does not contemplate that shippers shall have a right at common law to dispute in court litigation the reasonableness of past charges at applicable tariff rates subject to determination of the issue of reasonableness by referral to the Commission. Pp. 472-480. 252 F.2d 178 and 104 U.S. App. D.C. 72, 259 F.2d 802, reversed. [Footnote * Together with No. 96, Davidson Transfer & Storage Co., Inc., v. United States, on certiorari to the United States Court of Appeals for the District of Columbia Circuit. W. D. Benson, Jr. argued the cause and filed a brief for petitioner in No. 68. Bryce Rea, Jr. argued the cause for petitioner in No. 96. With him on the brief was Edgar Watkins. Morton Hollander argued the causes for the United States. With him on the brief were Solicitor General Rankin and Assistant Attorney General Doub. [359 U.S. 464, 465] MR. JUSTICE HARLAN delivered the opinion of the Court. Petitioners are interstate motor common carriers, certificated by the Interstate Commerce Commission (I. C. C.) under the Motor Carrier Act of 1935. 1 Section 217 of that Act, 49 U.S.C. 317, requires such carriers to file their transportation charges as tariffs with the I. C. C. These tariffs remain effective until suspended or changed in accordance with specified procedures, and so long as they are effective carriers are forbidden to charge or collect any rate other than that provided in the applicable tariff. 2 These cases present in common a single question under the Motor Carrier Act: Can a shipper of goods by a certificated motor carrier challenge in post-shipment litigation the reasonableness of the carrier's charges which were made in accordance with the tariff governing the shipment? In No. 68, T. I. M. E. transported several shipments of scientific instruments for the United States from Oklahoma to California. One of the shipments, illustrative of all involved in this litigation, originated at Marion, Oklahoma, and was carried over the lines of petitioner and a connecting carrier to Planehaven, California. At the time, the petitioning carrier had on file with the I. C. C. a tariff relating to such shipments which specified a through rate from Marion to Planehaven of $10.74 per hundredweight. Petitioner was also subject to tariffs which provided a rate of $2.56 per hundredweight from Marion to El Paso, Texas, and of $4.35 per hundredweight from El Paso to Planehaven. The through rate thus [359 U.S. 464, 466] exceeded the combination rate by $3.83. T. I. M. E. charged and collected on the basis of the through rate. On postpayment audit by the General Accounting Office under 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U.S.C. 66, that office concluded that the combination rather than the through rate was applicable to this shipment and required T. I. M. E. to refund the difference between the sum collected under the through tariff and that which would have been due under the combination tariffs. This T. I. M. E. did under protest. Thereafter T. I. M. E. brought suit under the Tucker Act, 28 U.S.C. 1346 (a) (2), claiming that the through tariff was applicable to the shipment and that it was thus entitled to recover the difference between the through and combination rates. The Government defended on the ground that the combination rate was applicable, and alternatively contended that if the through tariff were applicable the rate specified therein was unreasonably high insofar as it exceeded the combination rate. It asked that T. I. M. E.'s suit be stayed to permit the Government to bring a proceeding before the I. C. C. to determine the reasonableness of the through rate. The District Court in an unreported opinion held that the through rate was applicable, and that neither it nor the I. C. C. had power to pass upon the Government's contention that such rate was as to the past unreasonable. Accordingly, the District Court entered summary judgment for T. I. M. E. The Government appealed, accepting the District Court's determination as to the applicability of the through rate, but contending that the District Court had erred in refusing to refer to the I. C. C. the issue of the reasonableness of that rate as to past shipments. The Court of Appeals reversed, holding that the Government was entitled to an I. C. C. determination upon the question of reasonableness, and that the fact that the Motor [359 U.S. 464, 467] Carrier Act gives the I. C. C. no power to award reparations as to admittedly governing past rates does not prevent that body from passing on the question of past reasonableness when that issue arises in litigation in the courts. 252 F.2d 178. In No. 96, petitioner Davidson transported four shipments of goods for the United States from Poughkeepsie, N. Y., to Bellbluff, Va., and billed the United States on the basis of concededly applicable filed tariffs. On post-payment audit the general Accounting Office concluded that a part of these charges was unreasonable and should be refunded to the United States. 3 Davidson refunded under protest the sum demanded, which amounted to $18.34, and then brought suit under the Tucker Act to recover the refund. The Government defended on the sole ground that the applicable rate had been unreasonable. The District Court, without opinion, granted Davidson summary judgment, but on the Government's appeal the judgment was reversed, the Court of Appeals holding that the Government could defend on "unreasonableness" grounds, and directing a referral to the I. C. C. of the issue as to the reasonableness of the rate in question. 104 U.S. App. D.C. 72, 259 F.2d 802. We granted certiorari in both cases because of the suggestion that the result reached by the Courts of Appeals [359 U.S. 464, 468] conflicted with this Court's decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246 , and in order to settle the questions of statutory interpretation involved. 4 358 U.S. 810 . The courts below held that the right of the United States to resist on the ground of unreasonableness the payment of the charges incurred by it was one deriving from the common law and preserved by 216 (j) of the Motor Carrier Act. 5 In this Court the Government, although defending this ground of decision, relies primarily on the proposition that the Motor Carrier Act itself creates a judicially enforceable right in a shipper to be free from the exaction of unreasonable charges as to past shipments even though such charges reflect applicable rates duly filed with the I. C. C. The Government concedes that whatever the source of the asserted right may be, the question of the reasonableness of past rates cannot itself be decided in the courts, but takes the position that when such question arises in court litigation it may properly be referred to the I. C. C. for decision, and the results of that adjudication used to determine the respective rights of the litigants. I. The contention that the Motor Carrier Act itself creates a cause of action or affords a defense with respect to the recovery of unreasonable rates on the provisions of [359 U.S. 464, 469] 216 (b) and (d) of the Act, 49 U.S.C. 316 (b), (d), which provide as to interstate motor carriers: "(b) It shall be the duty of every [such] common carrier . . . to establish, observe, and enforce just and reasonable rates, charges, and classifications, and just and reasonable regulations and practices relating thereto . . . . . . . . . "(d) All charges made for any service rendered or to be rendered by any [such] common carrier . . . shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful. . . ." The Government urges that this language imposes a statutory duty on motor carriers not to charge or collect other than "reasonable" rates, and asks us to imply a cause of action under the Motor Carrier Act for any shipper injured by violation of that duty. We cannot agree. As this Court recognized in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251 , language of this sort in a statute which entrusts rate regulation to an administrative agency in itself creates only a "criterion for administrative application in determining a lawful rate" rather than a "justiciable legal right." In Montana-Dakota it was held that the Federal Power Act, which like the Motor Carrier Act expressly declares unreasonable rates to be "unlawful," 6 does not create a cause of action for the recovery of allegedly unreasonable past [359 U.S. 464, 470] rates. In the absence of any indication that Congress intended that despite the absence of any reparations power in the Federal Power Commission the federal courts should entertain suits for reparation of unreasonable rates, and refer to the Commission the controlling issue of past unreasonableness, the Court declined to permit the Commission to accomplish indirectly through such a proceeding that which Congress did not allow it to accomplish directly. It is true that under Parts I and III of the Interstate Commerce Act, relating respectively to rail and water carriers, a shipper may litigate as to the reasonableness of past charges even if those charges were based on the applicable and effective filed rates. The structure and history of Part II (the Motor Carrier Act), however, lead to the conclusion that here, as in the Federal Power Act, Congress did not intend to give shippers a statutory cause of action for the recovery of allegedly unreasonable past rates, or to enable them to assert "unreasonableness" as a defense in carrier suits to recover applicable tariff rates. The very provisions of Part I, and their counterparts in Part III, which give a right of action to shippers against carriers for damages incurred by carrier violations of the Act and provide the mechanics for the enforcement of that right are conspicuously absent in the Motor Carrier Act. Thus, whereas 8 of Part I 7 provides that "any common carrier subject to the provisions of this chapter [who] shall do . . . any act . . . in this chapter . . . declared to be unlawful . . . shall be liable to the person or persons injured thereby for the full amount of the damages sustained . . .," Part II has no comparable provision. Again, whereas 9 of Part I 8 gives an injured shipper the right to sue in the I. C. C. or in the Federal District Court, [359 U.S. 464, 471] Part II contains no comparable provision. In addition, 13 (1) and 16 of Part I 9 give a shipper claiming reparation the right to proceed in the Commission and to enforce his reparation award in the courts, and Part II contains no comparable provisions. To hold that the Motor Carrier Act nevertheless gives shippers a right of reparation with respect to allegedly unreasonable past filed tariff rates would require a complete disregard of these significant omissions in Part II of the very provisions which establish and implement a similar right as against rail carriers in Part I. We find it impossible to impute to Congress an intention to give such a right to shippers under the Motor Carrier Act when the very sections which established that right in Part I were wholly omitted in the Motor Carrier Act. Further, the I. C. C. itself has consistently recognized that nothing in Part II creates a statutory liability on the part of the carrier for past allegedly unreasonable filed rates. In the hearings which preceded the passage of legislation in 1949 adding to the Motor Carrier Act a statute of limitations on suits to recover amounts paid to carriers in excess of applicable filed rates, proposals were also made to amend the statute by adding to it provisions similar to those already found in 8, 9, 13, and 16 of Part I. The Commission noted that the proposal "would add to the Interstate Commerce Act a number of new sections which would make common carriers by motor vehicle . . . liable for the payment of damages to persons injured by them through violations of the act. At present this liability exists only in respect of carriers subject to parts I and III . . . ." 10 The suggested changes were not adopted. And in 1957 the Commission again [359 U.S. 464, 472] recommended amendment of the Motor Carrier Act to provide a remedy for violation of the statute to persons injured thereby, 11 and once more the measure failed of adoption. In light of the statute and its history, it is plain that if a shipper has a "justiciable legal right" to recover or resist past motor carrier charges alleged to have been unreasonable, it is necessary to look beyond the Motor Carrier Act for the source of that right. II. The Government urges that even if the Motor Carrier Act does not grant the right which is claimed here, the Act must at least be read to preserve a pre-existing common-law right of that kind. It relies on 216 (j) of the statute, 49 U.S.C. 316 (j), as showing a congressional intention to confirm such a right in its statement that nothing in 216 "shall be held to extinguish any remedy or right of action not inconsistent herewith." The contention is that the common law recognized the right of a shipper by common carrier to recover exorbitant rates paid under protest, 12 and that although the doctrine of primary jurisdiction requires that the issue of whether rates which are retrospectively challenged were in fact "unreasonable" be determined by the I. C. C., the common-law right may be vindicated in a suit in the courts through referral of the issue of "unreasonableness" to the Commission. [359 U.S. 464, 473] The saving clause of 216 (j) must be read in light of the judicial decisions interpreting Part I of the Interstate Commerce Act before 1935, for the course of those decisions illuminates the significance of the striking differences which Congress saw fit to make between the provisions of Part I and those of the Motor Carrier Act. The landmark case is Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 . There a shipper sued in a state court to recover the difference between an allegedly unreasonable charge exacted from it by a rail carrier pursuant to tariffs filed by the carrier with the I. C. C. and what was claimed would have been a just and reasonable charge. One of the issues before this Court was whether any common-law right to recover an exorbitant common carrier freight charge paid under protest survived the passage of the Interstate Commerce Act. The Court held, despite the existence in Part I of a saving clause much broader in scope than that here involved, 13 that because under the statutory scheme only the I. C. C. could decide in the first instance whether any filed rate was "unreasonable" either as to the past or future, any common-law right was necessarily extinguished as "absolutely inconsistent" with recognition of the Commission's primary jurisdiction. It is important to note that this conclusion did not rest upon the fact that under Part I the I. C. C. had reparations authority with respect to unreasonable charges paid by shippers, but instead was evidently dictated by the broader conclusion that the crucial question of reasonableness could not be decided by the courts. Since the Government concedes that under Part II, as under Part I, the issue of the unreasonableness of rates [359 U.S. 464, 474] cannot be adjudicated in the courts, it would seem to follow that the common-law right which the Government urges as surviving under 216 (j) cannot in fact survive, since that clause preserves only "any remedy or right of action not inconsistent" with the statutory scheme. The Government urges, however, that there is nothing actually inconsistent with the Commission's primary jurisdiction in recognizing the survival of a common-law right, because the demands of primary jurisdiction can be satisfied by referral of the question of the reasonableness of the assailed rate to the I. C. C., and that although the Commission concededly has no independent authority to entertain and adjudicate a claim for reparations, it nevertheless should be permitted in effect to exercise such an authority as an adjunct to a judicial proceeding. The question is, of course, one of statutory intent. We do not think that Congress, which we cannot assume was unaware of the holding of the Abilene case that a common-law right of action to recover unreasonable common carrier charges is incompatible with a statutory scheme in which the courts have no authority to adjudicate the primary question in issue, intended by the saving clause of 216 (j) to sanction a procedure such as that here proposed. It would be anomalous to hold that Congress intended that the sole effect of the omission of reparations provisions in the Motor Carrier Act would be to require the shipper in effect to bring two lawsuits instead of one, with the parties required to file their complaint and answer in a court of competent jurisdiction and then immediately proceed to the I. C. C. to litigate what would ordinarily be the sole controverted issue in the suit. No convincing reason has been suggested to us why Congress would have wished to omit a direct reparations procedure, as it has concededly here done, and yet leave open to the shipper the circuitous route contended for. [359 U.S. 464, 475] To permit a utilization of the procedure here sought by the Government would be to engage in the very "improvisation" against which this Court cautioned in Montana-Dakota, supra, in order to permit the I. C. C. to accomplish indirectly what Congress has not chosen to give it the authority to accomplish directly. In the absence of the clearest indication that Congress intended that the Motor Carrier Act should preserve rights which could be vindicated only by such an improvisation, we must decline to consider a defense which "involves only issues which a federal court cannot decide and can only refer to a body which also would have no independent jurisdiction to decide . . . ." 14 Montana-Dakota, supra, at p. 255. The Government's reliance upon United States v. Western Pacific R. Co., 352 U.S. 59 , is misplaced, for in that case, involving Part I of the Interstate Commerce Act, the authority of the I. C. C. to determine the reasonableness of past filed rates in aid of court litigation was undoubted. The case decided no more than that referral to the I. C. C. of the issue of "unreasonableness" involved in the shipper's defense to the carrier's timely Tucker Act suit was not foreclosed by the fact that affirmative reparations relief before the Commission would have been barred by limitations. It has no bearing on the question whether [359 U.S. 464, 476] a judicial remedy in respect of allegedly unreasonable past rates survived the passage of the Motor Carrier Act. It is pointed out that the I. C. C. has long claimed the authority to make findings as to the reasonableness of past motor carrier rates embodied in tariffs duly filed with the Commission. It is true that in a series of cases beginning with Barrows Porcelain Enamel Co. v. Cushman Motor Delivery Co., 11 M. C. C. 365, decided in 1939, divisions of the Commission, and eventually the Commission itself, Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, announced that the I. C. C. possessed such authority. But in these cases the anterior question now before us, whether a shipper has a right, derived from outside the statute, to put the question of the reasonableness of past rates in issue in judicial proceedings, was given only cursory consideration or else wholly ignored. 15 The cases devoted themselves to searching out authorization in the Act for I. C. C. participation, by adjudication as to past unreasonableness, in the vindication of whatever reparation rights might exist. 16 The [359 U.S. 464, 477] Government is able to point to only two cases in addition to the present ones, in the 24 years since passage of the Motor Carrier Act, in which courts have appeared to assume that the issue of reasonableness of past motor carrier rates was litigable, 17 and in neither of these cases was the question given other than the most cursory attention. Under these circumstances the issue before us cannot fairly be said to be foreclosed by long-standing interpretation and understanding. We are told that Congress has long been aware that the Commission was of the view that a common-law action for recovery of unreasonable rates paid to a motor carrier, with referral to the Commission of the issue of unreasonableness, would lie, and that its failure to legislate in derogation of this view implies an approval and acceptance of it. But it appears that each time the Commission's views in this regard were communicated to committees of Congress, it was in connection with a request by the Commission for legislation which would have given to shippers a cause of action under the statute and granted to the Commission the authority to award reparations, and each time that request was rejected. 18 [359 U.S. 464, 478] Had Congress been asked legislatively to overrule the doctrines enunciated in Bell Potato Chip, supra, and declined to do so, that fact would no doubt have been entitled to some weight in our interpretation of the Act. But we do not think that from the failure of Congress to grant a new authority any reliable inference can permissibly be drawn to the effect that any authority previously claimed was recognized and confirmed. Finally, it is contended that denial of a remedy to the shipper who has paid unreasonable rates is to sanction [359 U.S. 464, 479] injustice. 19 The fact that during the 24-year history of the Motor Carrier Act shippers have sought to secure adjudications in the I. C. C. as to the reasonableness of past rates on only a handful of occasions, despite the Commission's invitation to shippers to pursue that course in the line of cases culminating in Bell Potato Chip, supra, strongly suggests that few occasions have arisen where the application of filed rates has aggrieved shippers by motor carrier. 20 Furthermore, this contention overlooks the fact that Congress has in the Motor Carrier Act apparently sought to strike a balance between the interests of the shipper and those of the carrier, and that the statute cut significantly into pre-existing rights of the carrier to set his own rates and put them into immediate effect, at least so long as they were within the "zone of reasonableness." Under the Act a trucker can raise its rates only on 30 days' prior notice, and the I. C. C. may, on its own initiative or on complaint, suspend the effectiveness of the [359 U.S. 464, 480] proposed rate for an additional seven months while its reasonableness is scrutinized. 21 Even if the new rate is eventually determined to be reasonable, the carrier concededly has no avenue whereby to collect the increment of that rate over the previous one for the notice or suspension period. Thus although under the statutory scheme it is possible that a shipper will for a time be forced to pay a rate which he has challenged and which is eventually determined to be unreasonable as to the future, as when the suspension period expires before the I. C. C. has acted on the challenge, it is ordinarily the carrier, rather than the shipper, which is made to suffer by any period of administrative "lag." 22 For the foregoing reasons the judgment of the Court of Appeals in each of these cases must fall. Reversed. Footnotes [Footnote 1 Interstate Commerce Act, Part II, 49 Stat. 543, as amended, 49 U.S.C. 301 et seq. [Footnote 2 See Motor Carrier Act 216 (e), (g), 217 (b), (c), 49 U.S.C. 316 (e), (g), 317 (b), (c). [Footnote 3 This part of the charges was that represented by a "New York State Surcharge," included by Davidson in its rate to recoup the cost of a New York ton-mile truck tax. The tariff including the surcharge had been filed to become effective October 8, 1951. The I. C. C. had suspended the tariff for the maximum period permitted by the Act, but since the inquiry as to its reasonableness was not completed within the suspension period it went into effect on May 8, 1952, and was in effect at the time of shipment. The I. C. C. subsequently found the surcharge to be unreasonable and ordered its excision from Davidson's rates, 62 M. C. C. 117. This order was purely prospective and did not affect the shipments involved here. [Footnote 4 In our view of these cases it becomes unnecessary to consider Davidson's alternative contention that in any event the General Accounting Office had no right under 322 of the Transportation Act of 1940 to deduct from the carrier's charges the amount claimed by the United States to have been unreasonable. [Footnote 5 Section 216 (j), 49 U.S.C. 316 (j), provides that "Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith." [Footnote 6 Section 205 (a) of the Power Act, 49 Stat. 851, 16 U.S.C. 824d (a), provides that "All rates and charges . . . and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful." [Footnote 7 49 U.S.C. 8. [Footnote 8 49 U.S.C. 9. [Footnote 9 49 U.S.C. 13 (1), 16. [Footnote 10 Hearings before Senate Committee on Interstate and Foreign Commerce on S. 1194, 80th Cong., 2d Sess., pp. 1, 5, 11-12. [Footnote 11 See Hearings before Senate Committee on Interstate and Foreign Commerce on S. 378, 85th Cong., 2d Sess., pp. 3, 12. [Footnote 12 Such a right was assumed by this Court to have existed at common law in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436 , and Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370 . But see Aitchison, Fair Reward and Just Compensation, Common Carrier Service, p. 10, suggesting that the common-law right is one to be free from undue discrimination, rather than from mere exorbitance. [Footnote 13 Section 22 of the Interstate Commerce Act provided at the time of the Abilene case, and continues in substance to provide, that: "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." [Footnote 14 It is noteworthy that in 1949, when Congress added to the Motor Carrier Act a statute of limitations provision governing suits by and against carriers involving charges, such provision was made applicable only to suits for "overcharges," defined to mean "charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission." 49 U.S.C. 304a. It would be surprising, given the policy of uniformity reflected in this provision, for Congress not to have also added a statute of limitations provision applicable to suits on account of unreasonable rates, had a cause of action with respect to such rates been deemed to exist. Compare 49 U.S.C. 16 (3) (b), providing a limitations provision for complaints for the recovery of damages "not based on overcharges" from rail carriers. [Footnote 15 See, e. g., United States v. Davidson Transfer & Storage Co., Inc., 302 I. C. C. 87, 90-91, involving the same parties as those now before us in No. 96. Barrows, relied on heavily in the dissenting opinion because it was decided by a Division of the I. C. C. of which Commissioner Eastman, previously Federal Coordinator of Transportation and a principal architect of the Motor Carrier Act, was a member, does not even suggest that a common-law action to recover unreasonable rates might be maintainable. Rather it referred to findings as to the reasonableness of past rates only as "valuable future guides to shippers and carriers." 11 M. C. C., at 367. [Footnote 16 The Bell case purported to find such authorization in 216 (e) and 204 (c) (49 U.S.C. 316 (e), 304 (c), although both these provisions appear in terms directed only to the authorization of findings and orders operating solely prospectively. It relied also on the provisions of the statute which impose on the carrier the duty of maintaining reasonable and nondiscriminatory rates. 49 U.S.C. 316 (b), (d). But see Montana-Dakota Utilities Co. v. North-western Pub. Serv. Co., supra. [Footnote 17 New York & New Brunswick Auto Express Co. v. United States, 130 Ct. Cl. 339, 126 F. Supp. 215; United States v. Garner, 134 F. Supp. 16 (D.C. E. D. N.C.). [Footnote 18 See notes 10, 11, supra. It is suggested that Congress was fully informed at the time of passage of the Transportation Act of 1940 of "an existing interpretation" of the Motor Carrier Act which would allow common-law actions for the recovery of unreasonable rates. We do not so read the legislative history relied upon. On the contrary, Commissioner Eastman, testifying before the Senate Committee, appeared to distinguish between the availability of a judicial remedy in respect of inapplicable tariff rates and the unavailability of such a remedy in respect of rates claimed to be "unreasonable" though embodied in a filed tariff. The Commissioner said: "So far as reparation is concerned, there is no reason why these [359 U.S. 464, 478] provisions should not be applied to motor carriers as well as to railroads. They were omitted from the Motor Carrier Act only because of the desire to lighten the burdens of the motor carriers in the early stages of regulation, in the absence of any strong indication of public need. Motor carriers have practically no traffic which is noncompetitive, and there is little danger that they will exact exorbitant charges. Since the Motor Carrier Act became effective in 1935, the Commission has not once had occasion to condemn motor-carrier rates as unreasonably high. I don't think we have had any complaints to that effect. It follows that there is nothing to indicate that shippers need provisions to enable the Commission to award reparation for damages suffered because of unreasonable charges. "The occasion for reparation from motor carriers would chiefly arise, therefore, in the event of overcharges above published tariff rates. Shippers can recover such overcharges in court as the law now stands." (Emphasis added.) Hearings before Senate Interstate Commerce Committee on S. 1310, S. 2016, S. 1869, and S. 2009, 76th Cong., 1st Sess., pp. 791-792. See also Hearings at p. 132, where Senator Reed asked a truckers' representative opposing the addition of reparations provisions to the Motor Carrier Act "[I]f a shipper by railroad, which is one from of common carrier, now has a remedy at law in the way of damages which he may have suffered through a collection of an unreasonable rate, and if we are trying to make uniform regulations, why should a common carrier by truck be exempted from the right or remedy of the shipper against an unreasonable charge any more than any other form of common carrier?" The reparations provision was subsequently stricken from the bill. [Footnote 19 But see Jaffe, Primary Jurisdiction Reconsidered, 102 U. of Pa. L. Rev. 577, 589, commenting on Bell Potato Chip, supra: "It is, to be sure, doubtful that reparations in such a case serve a useful function. Rates are under continuous scrutiny. Administrative condemnation implies new circumstances or new understanding rather than serious past injustice. And, as Mr. Justice Jackson observes in the Montana-Dakota case, the overcharge has usually been passed along by the one who paid it to some undiscoverable and unreimbursable consumer." [Footnote 20 It was recognized at the time of passage of the Motor Carrier Act that competitive conditions in the trucking industry were such that the possibility of unreasonably high rates presented no problem. Commissioner Eastman, who had conducted an inquiry into the motor carrier industry, stated during the hearings preceding passage of the Act that "I do not recall that there were any complaints based upon excessive charges." Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H. R. 5262, 6016, 74th Cong., 1st Sess., p. 32. See also his 1939 statement before the Interstate Commerce Committee of the Senate, quoted at note 18, supra. [Footnote 21 See Motor Carrier Act, 217 (c), 216 (g), 49 U.S.C. 317 (c), 316 (g). [Footnote 22 Counsel for the Government stated on oral argument that the situation presented in No. 96, where the suspension period expired before the adjudication of the reasonableness of the challenged rate had been completed, arises very infrequently, since the suspension period is ordinarily ample to permit such adjudication. MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK join, dissenting. There can be no serious doubt that at common law a cause of action existed against carriers who charged unreasonable rates. See Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436 ; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 383 . 1 Nor [359 U.S. 464, 481] can it be questioned that the Motor Carrier Act confirmed the common-law policy against unreasonable rates and in fact expressly made such rates illegal. 2 It is also clear that the Act attempted to preserve all pre-existing remedies which did not directly conflict with its aims. 3 Nevertheless the Court today holds that the statute abolished the common-law remedy by implication and left shippers helpless against carriers who have charged unreasonable and therefore illegal rates. To accomplish this result the Court relies essentially on two prior decisions of this Court; Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246 , which I believe has virtually nothing to do with the issue, and Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 , which, I think, supports a holding opposite to that which the Court makes today. Moreover, in reaching its conclusion, the Court overturns a long-standing and consistent I. C. C. interpretation of the Motor Carrier Act - an interpretation which was based in large part on the Abilene case, which was first formulated by men who helped draft the Act, and which has been generally accepted by shippers, carriers, and Congress alike. I am unable to understand why the Court strains so hard to reach so bad a result. The Motor Carrier Act, though largely patterned after the Interstate Commerce Act of 1887 regulating railroads, [359 U.S. 464, 482] had no counterpart of 8, 9, 13 and 16 of that Act. 4 These sections provided two remedies either of which a shipper could pursue to recover damages suffered as a result of unlawful carrier rates or practices. One remedy was by complaint to the Commission the other by suit brought in an appropriate District Court of the United States. Both these remedies authorized imposition of reasonable attorneys' fees on a carrier should a claim reach the court and be decided in the shipper's favor. See Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 432 -433. In Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 , this Court considered the effect of these reparation sections on common-law actions by shippers for damages caused by rates alleged to be unlawful because unreasonable. The Court implied that the state court in which the shipper had sued had no jurisdiction since the congressional remedies in the reparation sections were complete and exclusive in themselves and supplanted the pre-existing common-law right of shippers to sue for damages caused by unreasonable rates, this right being deemed inconsistent with the statutory remedies; and held that the power to determine the reasonableness of rates was primarily and exclusively vested by the Act in the Commission. It did not hold, as the Court now assumes, that the existence of primary jurisdiction alone destroyed all court remedies. Accordingly, since the Abilene case, when the question of unreasonableness has arisen in court proceedings courts have often refused to dismiss the cause but have stayed the action pending I. C. C. determination of that issue. See e. g., Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247 ; General Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432 -433; United States v. Western P. R. [359 U.S. 464, 483] Co., 352 U.S. 59, 62 -70. 5 The Court today seems to decide instead that primary jurisdiction is inconsistent with court remedies of any kind, and that the mere omission of reparations provisions in the Motor Carrier Act showed a congressional purpose to deprive shippers of the common-law right to obtain damages resulting from unreasonable rates. It reaches this conclusion although to do so leaves shippers with no remedy at all however unreasonable and unlawful a past rate may have been, and although there is not a word in the Act, and nothing to which we have been directed in its history, that shows any congressional purpose to take away the pre-existing remedy. On the contrary, since passage of the Motor Carrier Act in 1935, a steady line of decisions by the I. C. C. has interpreted that Act as leaving shippers the right to sue in the courts for damages resulting from unlawful rates. This action lay only where the rates had not previously been held reasonable by the Commission, cf. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 387 -388, and consisted of two parts, (1) a suit by a shipper in a court, (2) a determination by the Commission that the rates sued on had, in fact, been unreasonable or otherwise unlawful when charged. The first case of this kind, Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M. C. C. 365, was submitted to the Commission in April 1938, and handed down in February 1939. It was decided by Division 5 which was specially charged [359 U.S. 464, 484] with the administration of the Motor Carrier Act and was concurred in by Commissioner Eastman who had by then served on the Commission or as Coordinator of the Transportation System of the country for 17 years. He had drafted the 1935 Act and probably knew more about what it meant than anybody on this Court then or now. 6 Admitting that the Commission could not itself award reparations, Division 5 held, in Barrows, that it did have authority to pass on the reasonableness of past rates since unreasonable rates were unlawful under the Act. Significantly Division 5 stated, "This conclusion is, we believe, supported by the reasoning of the United States Supreme Court in Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 ." 11 M. C. C., at 367. Barrows was reaffirmed in early 1940 with Commissioner Eastman again on the panel. 7 [359 U.S. 464, 485] In September 1940, after very extensive hearings, the Interstate Commerce Act was amended and broadened in many respects. 8 At the same time, water carriers were brought under Commission regulation. To achieve uniformity between the different parts of the Act, efforts were made to subject motor carriers to reparation proceedings before the Commission. 9 The representative of the motor carriers strenuously objected. The hearings before the Senate Committee on Interstate Commerce show that the objections were directed against subjection of motor carriers to Commission reparations not to common-law actions in the courts. Commission actions, it was stated, might result in the taxing of attorneys' fees in addition to damages and might thereby encourage "claim chasers." 10 The Committee members and the witnesses before Congress all appeared to recognize that suits could be filed in court. Thus the Chairman of the Committee stated "He has that right now. It does not add anything, as a matter of fact, to the rights of the shipper . . . . [I]f [359 U.S. 464, 486] you were afraid that the railroad might go and stir up a claim against [the truckers], they can do that now." 11 And the representative of the truckers answered "We are not fearful of that, but we are fearful of practices occurring where [the truckers] will be constantly harassed." To which a member of the Committee added "The objection is that under the existing law you have to go to the court to get relief and under the proposed law the Interstate Commerce Commission could give you relief?" 12 Commissioner Eastman also appeared before the Committee, two months after the Barrows opinion came down, and stated "[M]otor carrier tariffs have been, by and large, very imperfect products, and while the situation is improving continually, much room for improvement remains. "Where tariffs are poorly worded and imperfectly constructed, experienced traffic experts can often raise troublesome questions as to the applicability of the rates charged, and there are those who make this their business, obtaining their compensation from such reparation awards as they are successful in securing. . . . . . "In the early stages of their regulation and tariff development, it was thought that the motor carriers might well be spared the burden of defending such claims before the Commission." 13 Accordingly the Committee Report on the 1940 Act stated that the paragraph of the bill which would have [359 U.S. 464, 487] subjected the motor carriers to reparation claims before the Commission was changed "because of motor carrier objections to awards of reparation by the Commission. Shippers have the right to recover in court any damages resulting from violations of the law by motor carriers or carriers by water." S. Rep. No. 433, 76th Cong., 1st Sess. 18. (Emphasis supplied.) 14 It seems clear, therefore, that when the 1940 Motor Carrier Act was adopted, at least the Senate Committee was fully informed of an existing interpretation of the 1935 Act under which shippers could sue for damages on the basis of unreasonable rates. After the passage of the 1940 Act, Divisions of the Commission continued to construe the Motor Carrier law to allow determinations of the reasonableness of past rates. In 1942, for example, the Commission did this in a case involving the same question presented by the Government in T. I. M. E., No. 68 - the reasonableness of a joint through rate which exceeds the aggregate of intermediate rates between the same points. The Commission held that on the facts presented the rates "were unreasonable . . . to the extent that they exceeded the corresponding aggregate . . . ." Kingan & Co. v. Olson Trans. Co., 32 M. C. C. 10, 12. Finally in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, the whole Commission reviewed the question to provide a "precedent for future guidance" and emphatically approved the Barrows line of cases. It established safeguards against frivolous or moot complaints but [359 U.S. 464, 488] reaffirmed the existence of court remedies for unreasonable rates and the need for Commission determinations of the fact of unreasonableness before the courts could award damages. Both the Bell case and the Barrows case have been cited to Congressional Committees time and again. In 1947 and 1948 extended hearings were held before Senate and House Committees on bills to establish uniform statutes of limitations for court actions arising out of violations of the Commerce Act and to subject motor carriers and freight forwarders to Commission reparations. 15 Members of the I. C. C. in written statements, briefs and testimony, stressed to the Committees considering the bills both the existence of the court remedies described in the Bell case and the fact that few common-law actions were in fact undertaken because of the expense involved in a split procedure. 16 Witnesses for an against the bills accepted the rule of the Bell case. 17 Thus the representative of the freight forwarders, whose status under the Act is the same as that of motor carriers, referring to the Bell case said "It is the law today," and then added "If the Commission finds that the rates have been unreasonable in the past, damages may be obtained under the law as it stands today." 18 He opposed the proposed change because he felt that it would make it easier for shippers to obtain reparations where no damages [359 U.S. 464, 489] were actually suffered. 19 When the bills were reported by the Committees the provisions for reparations before the Commission were excluded. The report of the House Committee explained that reparations before the Commission were not available under the law as it stood. After stating that the bills originally had included reparation provisions before the Commission similar to those applied to rail carriers and that these had been dropped, the report incorporated a letter from the I. C. C. explaining the existence of the court remedy and pointing out the weaknesses of this remedy. The Committee then stated that legislation making additional reparations provisions applicable to motor carriers and freight forwarders was not at that time deemed desirable. It concluded that the other provisions, including a uniform statute of limitations in cases arising from the charging of tariffs different from those on file, should be enacted. 20 While Congress did not enact these measures before adjournment, 21 they were passed in the following Congress after Committee Reports which referred to the hearings of the prior two years. 22 Once more, as late as 1957, after this Court's decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246 , the I. C. C. sought to have reparations before the Commission established. Again hearings were held; in these the Chairman of the I. C. C., the Under Secretary of Commerce, a representative of the freight forwarders and others unequivocally testified that a remedy [359 U.S. 464, 490] for unreasonable past rates was available through the courts. 23 This testimony by the representative of the freight forwarders caused the presiding member of the Subcommittee to ask "What does this bill propose that is different from what we now have? That is what I am trying to determine." To which the representative, opposing Commission reparations, replied: "It just adds some cumbersome machinery that we think will cause litigation." 24 This Court has frequently had occasion to say that interpretations of statutes by agencies charged with their administration are entitled to very great weight. 25 Moreover, the legislative history of bills attempting to grant the I. C. C. power to award reparations goes far, in view of the arguments made against them, toward approving the original interpretation of the Motor Carrier Act made by Division 5 of the I. C. C. and Commissioner Eastman. Recently, the Commission has reaffirmed its interpretation which has stood for more than 20 years. 26 Against reaffirmance a dissent was written based on the belief that this Court's holding in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246 , required a new interpretation. The Court seems to stress the same contention here. Quite apart from the fact that the question actually up for decision in Montana-Dakota was whether the Federal Power Act created a federal cause of action and not whether it [359 U.S. 464, 491] destroyed common-law rights, I believe that there are important differences between the Power Act and the Motor Carrier Act which make the Montana-Dakota case wholly inapplicable here. Admittedly Montana-Dakota and the statute it interpreted have some similarities to these cases and this statute. But unlike the Carrier Act the provisions of the Power Act under consideration in Montana-Dakota regulated wholesale rates, that is rates charged purchasers for resale, not rates charged retail customers. 27 The purpose of that Act was, nevertheless, to benefit consumers by holding down wholesale prices. Wholesalers whose purchase price was reduced prospectively could pass the reduction on to their customers, the consumers. In Montana-Dakota the Court indicated that the consumers would not be helped by ex post facto determinations of unreasonableness resulting in a refund to wholesalers. 341 U.S., at 254 . The facts of the case lent themselves to such a finding. Damages were asked for a back period of many years; consumers had long since paid their rates on the basis of the unreasonable prices charged the wholesalers; and there was no reason to believe that any consumers who benefited from whatever lower prices the refund might allow would be the same ones who had paid the excessive rates. The Federal Power Commission, in an amicus brief, stressed these facts and argued that any refund would likely be a windfall providing an unjust enrichment to the wholesaler. Citing this brief the Court accepted the F. P. C. argument, 341 U.S., at 254 , n. 11, over a vigorous dissent which indicated that perhaps ways of refunding the excess to consumers might be found. 341 U.S., at 265 , 266. No similar problem exists under the Motor Carrier Act. The relevant sections were in large [359 U.S. 464, 492] measure designed to protect shippers, 28 and in fact the shippers are, in many instances, the ultimate parties on whom the burden falls. Both these cases are, of course, such instances. And even when the shippers are not necessarily the ultimate parties, the economics of the industry is such that windfalls to them are unlikely. Similarly, other reasons which induced this Court's holding in Montana-Dakota are inapplicable here. In refusing to include in the Power Act provisions authorizing wholesalers to seek reparations before the Federal Power Commission, the Senate Committee which reported the bill said, "They are appropriate sections for a State utility law, but the committee does not consider them applicable to one governing merely wholesale transactions." 29 This report, unlike any in the Motor Carrier Act, is easily understood when read in the light of evidence presented to the Committee considering the Power Act. The reparation provisions of that Act were opposed by the National Association of Railroad and Utilities Commissioners, whose General Solicitor told the Committee: "That is an entirely proper provision in a railroad statute. When a man goes to the railroad station with a load of goods to ship somewhere he has to ship at the rate that is fixed in the tariff. He must make the shipment then; and he ought to be able to come thereafter to the Commission and show that he was required to pay an unreasonable rate, if it was unreasonable, and to ask for a determination of a reasonable rate and get reparation that is due him for any overpayment. That is perfectly proper. But this bill relates only to service between the wholesale generating [359 U.S. 464, 493] or producing company and the distributing utility. We question whether the public interest will be served by giving any company the right to go ahead receiving service at the established rate for 2 years, and then to bring a complaint before the Federal Commission that the rate has been unreasonable." 30 The testimony was emphasized, as shown above, in the briefs in Montana-Dakota. 31 Doubtless this history led the minority as well as the majority in that case to the view that "Congress did not intend either court or Commission to have the power to award reparations on the ground that a properly filed rate or charge has in fact been unreasonably high or low." 341 U.S., at 258 . Since the history of the Motor Carrier Act points in the opposite direction there is no reason to apply the Montana-Dakota case to the Motor Carrier Act. Moreover, if motor carrier shippers are deprived of court actions to recover for unreasonable rates, they are placed in a much worse position than wholesale power purchasers. 16 U.S.C. 824d (e) authorizes the Power Commission to suspend rates for five months and, if a hearing on those rates is not concluded by that time, to order the power company to keep an accurate account of the amount and source of all money received. Should the rates be found unreasonable, the Commission can order the excess refunded with interest. The Motor Carrier Act, on the other hand, while authorizing suspension of rates, has no provision for refunds if hearings are not completed when the suspension expires. 216 (g), 49 U.S.C. 316 (g). Had there been such a provision in [359 U.S. 464, 494] the Carrier Act the Government would have been fully protected from the rates charged in the Davidson case, No. 96. The Power Act and the Motor Carrier Act are quite different in language, scope, purpose and meaning. The Court in Montana-Dakota carefully limited its holding to the Power Act, e. g., 341 U.S., at 254 . The arguments advanced in that context for the conclusive effect of power rates once filed are wholly inapplicable to rates under the Motor Carrier Act. In these Motor Carrier cases we have 20 years of Commission interpretation, in part by men who helped write the Act and who administered it from the time it first went into effect, to help us in deciding the question. Congress passed the 1940 revision of the Motor Carrier Act, apparently with full knowledge of the Commission rulings which indicated that shippers could challenge, in the courts, carrier-fixed rates so long as these rates had not been expressly held reasonable by the Commission. Cf. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370 . The changes made in 1949, and those not made in 1957, again indicate a reliance on the Commission's interpretation. I believe that interpretation should govern here, and therefore would affirm the judgments of the Courts of Appeals in both these cases. [Footnote 1 "The exaction of unreasonable rates by a public carrier was forbidden by the common law. . . . The public policy which underlay this rule could . . . be vindicated . . . in an action brought by him who paid the excessive charge, to recover damages thus sustained." 284 U.S., at 383 . [Footnote 2 49 Stat. 543, as amended, 49 U.S.C. 301-327. Section 216 (d) of the Act, as amended, 49 U.S.C. 316 (d), reads in part: "All charges made for any service rendered or to be rendered by any common carrier by motor vehicle engaged in interstate or foreign commerce in the transportation of passengers or property . . . shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful." See also 216 (b), 49 U.S.C. 316 (b). [Footnote 3 Section 216 (j), 49 U.S.C. 316 (j) states "Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith." [Footnote 4 See 24 Stat. 382-384, as amended, 49 U.S.C. 8, 9, 13, 16. [Footnote 5 Conversely many instances have been cited of shippers seeking only a determination of the reasonableness of a past practice from the I. C. C. and reserving their rights to obtain damages later in the courts. See generally the discussion of this problem in United States v. Interstate Commerce Comm'n, 337 U.S. 426, 464 -466 (dissenting opinion). See also United States v. Interstate Commerce Comm'n, 337 U.S. 426 (opinion of the Court). [Footnote 6 See Hearings, Senate Committee on Interstate Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 756-757, 762, 785. [Footnote 7 Dixie Mercerizing Co. v. ET & WNC Motor Transp. Co., 21 M. C. C. 491. The Court suggests that this line of cases gave only cursory treatment to the question of whether a court remedy existed. But in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, 341-343, the I. C. C. stated in part: "To hold that a motor carrier which has violated any of these prescribed duties is immune to civil liability to one injured thereby while rail and water carriers similarly offending must respond in damages would be not only at variance with the fundamental rule of ubi jus ibi remedium but would also disregard the provisions of sections 216 (j), 217 (b), and 22, which preserve all common-law and statutory remedies. The statute, by declaring unlawful and prohibiting unreasonable and discriminatory rates, has superseded the common-law right but has not abrogated remedies heretofore recognized. See Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 ; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258 . . . . "How, then, is a shipper who has been injured by the exaction of an unlawful motor-carrier rate to obtain redress against an unwilling carrier? The answer is, in the courts. . . . . . . . . ". . . In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions. Eastern-Central Motor Carriers Assn. v. United States, 321 U.S. 194 ; General American Tank Car Corp. v. El Dorado Term. Co., 308 U.S. 422 ; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., supra; Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.S. 304, 314 ; Southern Ry. Co. v. Tift, 206 U.S. 428, 434 ." [Footnote 8 54 Stat. 898. [Footnote 9 See, e. g., statement of Senator Reed, Hearings, Senate Committee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 132. [Footnote 10 Id., at 129-133. [Footnote 11 Id., at 130. [Footnote 12 Ibid. [Footnote 13 Id., at 792. [Footnote 14 The statute expressly declares unreasonable rates unlawful. See note 2, supra. Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M. C. C. 365, confirmed this fact as to past unreasonable rates. [Footnote 15 See Hearings, House Committee on Interstate and Foreign Commerce on H. R. 2324, H. R. 2295, 80th Cong., 1st Sess.; Hearings, Senate Subcommittee of the Committee on Interstate and Foreign Commerce on S. 571-H. R. 2759, S. 935, S. 1194, S. 290-2426, 80th Cong., 2d Sess. [Footnote 16 Hearings, House Committee, supra, n. 15, at 5-6; Hearings, Senate Subcommittee, supra, n. 15, at 8-16. [Footnote 17 See, e. g., Hearings, House Committee, supra, n. 15, at 41-47, 52. [Footnote 18 Id., at 41, 42. [Footnote 19 Id., at 42-47. [Footnote 20 H. R. Rep. No. 208, 80th Cong., 1st Sess. 3, 4. [Footnote 21 The bill passed the House of Representatives but the Senate did not debate it before adjournment. See H. R. Rep. No. 766, 81st Cong., 1st Sess. 1; S. Rep. No. 83, 81st Cong., 1st Sess. 2. [Footnote 22 63 Stat. 280. See H. R. Rep. No. 766, 81st Cong., 1st Sess.; S. Rep. No. 83, 81st Cong., 1st Sess. [Footnote 23 Hearings, Senate Subcommittee of Committee on Interstate and Foreign Commerce on S. 377, S. 378, S. 937, S. 939, S. 943, 85th Cong., 1st Sess. 3, 12, 49, 116-117, 137. [Footnote 24 Id., at 1, 117. [Footnote 25 See, e. g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378 ; Skidmore v. Swift & Co., 323 U.S. 134, 140 ; cf. Cammarano v. United States, 358 U.S. 498 . [Footnote 26 United States v. Davidson Transfer & Storage Co., 302 I. C. C. 87. [Footnote 27 41 Stat. 1063, as amended, 16 U.S.C. 791a-825r. [Footnote 28 See testimony of Commissioner Eastman in Hearings, Senate Subcommittee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 792. [Footnote 29 S. Rep. No. 621, 74th Cong., 1st Sess. 20. [Footnote 30 Hearings, House Committee on Interstate and Foreign Commerce on H. R. 5423, 74th Cong., 1st Sess. 1685. [Footnote 31 See Brief of Respondent Northwestern Pub. Serv. Co., pp. 26-27; Brief of the Federal Power Commission as amicus curiae, p. 13. [359 U.S. 464, 495]

conservative

public_entity

economic_activity

2007-068-01

United States Supreme Court KENNEDY v. LOUISIANA(2008) No. 07-343 Argued: April 16, 2008Decided: June 25, 2008 Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting petitioner's reliance on Coker v. Georgia, 433 U.S. 584, which barred the use of the death penalty as punishment for the rape of an adult woman but left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment. Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death. The court acknowledged that petitioner would be the first person executed since the state law was amended to authorize the death penalty for child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that four more States had capitalized child rape since 1995 and at least eight others had authorized death for other nonhomicide crimes, as well as that, under Roper v. Simmons, 543 U.S. 551, and Atkins v. Virginia, 536 U.S. 304, it is the direction of change rather than the numerical count that is significant, the court held petitioner's death sentence to be constitutional. Held:The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. Pp.8-36. 1.The Amendment's Cruel and Unusual Punishment Clause "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101. The standard for extreme cruelty "itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U.S. 238, 382. Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.'" Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim's death. See, e.g., Coker, supra; Enmund v. Florida, 458 U.S. 782. In making its determination, the Court is guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." Roper, supra, at 563. Consensus is not dispositive, however. Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose. Pp.8-10. 2.A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape. Pp.11-23. (a)The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penalty for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven jurisdictions--36 States plus the Federal Government--currently impose capital punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited the death penalty under the circumstances those cases considered. Pp.11-15. (b)Respondent's argument that Coker's general discussion contrasting murder and rape, 433 U.S., at 598, has been interpreted too expansively, leading some States to conclude that Coker applies to child rape when in fact it does not, is unsound. Coker's holding was narrower than some of its language read in isolation indicates. The Coker plurality framed the question as whether, "with respect to rape of an adult woman," the death penalty is disproportionate punishment, id., at 592, and it repeated the phrase "adult woman" or "adult female" eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker's reasoning, including its analysis of legislative consensus. See, e.g., id., at 595-596. There is little evidence to support respondent's contention that state legislatures have understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that crime. Accordingly, the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child. Pp.15-20. (c)A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U.S., at 315, but no showing of consistent change has been made here. That five States may have had pending legislation authorizing death for child rape is not dispositive because it is not this Court's practice, nor is it sound, to find contemporary norms based on legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See id., at 314-315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See 543 U.S., at 565. But the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See id., at 566-567. Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. See 458 U.S., at 789, 792. Pp.20-22. (d)Execution statistics also confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment for adult or child rape for some length of time between the Court's 1972 Furman decision and today; yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for child rape, and petitioner and another man so sentenced are the only individuals now on death row in the United States for nonhomicide offenses. Pp.22-23. 3.Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape. Pp.23-35. (a)The Court's own judgment should be brought to bear on the death penalty's acceptability under the Eighth Amendment. See, e.g., Coker, supra, at 597. Rape's permanent and devastating impact on a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim's death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment "be exercised within the limits of civilized standards." Trop, 356 U.S., at 99-100. Evolving standards of decency counsel the Court to be most hesitant before allowing extension of the death penalty, especially where no life was taken in the commission of the crime. See, e.g., Coker, 433 U.S., at 597-598; Enmund, 458 U.S., at 797. Consistent with those evolving standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," they cannot compare to murder in their "severity and irrevocability," id, at 598. The Court finds significant the substantial number of executions that would be allowed for child rape under respondent's approach. Although narrowing aggravators might be used to ensure the death penalty's restrained application in this context, as they are in the context of capital murder, all such standards have the potential to result in some inconsistency of application. The Court, for example, has acknowledged that the requirement of general rules to ensure consistency of treatment, see, e.g., Godfrey v. Georgia, 446 U.S. 420, and the insistence that capital sentencing be individualized, see, e.g., Woodson v. North Carolina, 428 U.S. 280, have resulted in tension and imprecision. This approach might be sound with respect to capital murder but it should not be introduced into the justice system where death has not occurred. The Court has spent more than 32 years developing a foundational jurisprudence for capital murder to guide the States and juries in imposing the death penalty. Beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of death. Pp.24-30. (b)The Court's decision is consistent with the justifications offered for the death penalty, retribution and deterrence, see, e.g., Gregg v. Georgia, 428 U.S. 153, 183. Among the factors for determining whether retribution is served, the Court must look to whether the death penalty balances the wrong to the victim in nonhomicide cases. Cf. Roper, supra, at 571. It is not at all evident that the child rape victim's hurt is lessened when the law permits the perpetrator's death, given that capital cases require a long-term commitment by those testifying for the prosecution. Society's desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a "special risk of wrongful execution" in some cases. Cf. Atkins, supra, at 321. As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim. Pp.30-35. 4.The concern that the Court's holding will effectively block further development of a consensus favoring the death penalty for child rape overlooks the principle that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society," Trop, 356 U.S., at 101. Confirmed by the Court's repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim's life. P.36. 957 So.2d 757, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C.J., and Scalia and Thomas, JJ., joined. PATRICK KENNEDY, PETITIONER v. LOUISIANA on writ of certiorari to the supreme court of louisiana [June 25, 2008] Justice Kennedy delivered the opinion of the Court. The National Government and, beyond it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the Constitution of the United States, and all persons within those respective jurisdictions may invoke its protection. See Amdts. 8 and 14, §1; Robinson v. California, 370 U.S. 660 (1962). Patrick Kennedy, the petitioner here, seeks to set aside his death sentence under the Eighth Amendment. He was charged by the respondent, the State of Louisiana, with the aggravated rape of his then-8-year-old stepdaughter. After a jury trial petitioner was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. See La. Stat. Ann. §14:42 (West 1997 and Supp. 1998). This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional. I Petitioner's crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death. At 9:18 a.m. on March 2, 1998, petitioner called 911 to report that his stepdaughter, referred to here as L.H., had been raped. He told the 911 operator that L. H. had been in the garage while he readied his son for school. Upon hearing loud screaming, petitioner said, he ran outside and found L. H. in the side yard. Two neighborhood boys, petitioner told the operator, had dragged L.H. from the garage to the yard, pushed her down, and raped her. Petitioner claimed he saw one of the boys riding away on a blue 10-speed bicycle. When police arrived at petitioner's home between 9:20 and 9:30 a.m., they found L.H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he had carried her from the yard to the bathtub and then to the bed. Consistent with this explanation, police found a thin line of blood drops in the garage on the way to the house and then up the stairs. Once in the bedroom, petitioner had used a basin of water and a cloth to wipe blood from the victim. This later prevented medical personnel from collecting a reliable DNA sample. L.H. was transported to the Children's Hospital. An expert in pediatric forensic medicine testified that L.H.'s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery. At the scene of the crime, at the hospital, and in the first weeks that followed, both L.H. and petitioner maintained in their accounts to investigators that L.H. had been raped by two neighborhood boys. One of L.H.'s doctors testified at trial that L. H. told all hospital personnel the same version of the rape, although she reportedly told one family member that petitioner raped her. L.H. was interviewed several days after the rape by a psychologist. The interview was videotaped, lasted three hours over two days, and was introduced into evidence at trial. On the tape one can see that L.H. had difficulty discussing the subject of the rape. She spoke haltingly and with long pauses and frequent movement. Early in the interview, L.H. expressed reservations about the questions being asked: "I'm going to tell the same story. They just want me to change it.... They want me to say my Dad did it... . I don't want to say it.... I tell them the same, same story." Def. Exh. D-7, 01:29:07-:36. She told the psychologist that she had been playing in the garage when a boy came over and asked her about Girl Scout cookies she was selling; and that the boy "pulled [her by the legs to] the backyard," id., at 01:47:41-:52, where he placed his hand over her mouth, "pulled down [her] shorts," Def. Exh. D-8, 00:03:11-:12, and raped her, id., at 00:14:39-:40. Eight days after the crime, and despite L.H.'s insistence that petitioner was not the offender, petitioner was arrested for the rape. The State's investigation had drawn the accuracy of petitioner and L.H.'s story into question. Though the defense at trial proffered alternative explanations, the case for the prosecution, credited by the jury, was based upon the following evidence: An inspection of the side yard immediately after the assault was inconsistent with a rape having occurred there, the grass having been found mostly undisturbed but for a small patch of coagulated blood. Petitioner said that one of the perpetrators fled the crime scene on a blue 10-speed bicycle but gave inconsistent descriptions of the bicycle's features, such as its handlebars. Investigators found a bicycle matching petitioner and L.H.'s description in tall grass behind a nearby apartment, and petitioner identified it as the bicycle one of the perpetrators was riding. Yet its tires were flat, it did not have gears, and it was covered in spider webs. In addition police found blood on the underside of L.H.'s mattress. This convinced them the rape took place in her bedroom, not outside the house. Police also found that petitioner made two telephone calls on the morning of the rape. Sometime before 6:15 a.m., petitioner called his employer and left a message that he was unavailable to work that day. Petitioner called back between 6:30 and 7:30 a.m. to ask a colleague how to get blood out of a white carpet because his daughter had "'just become a young lady.'" Brief for Respondent 12. At 7:37 a.m., petitioner called B & B Carpet Cleaning and requested urgent assistance in removing bloodstains from a carpet. Petitioner did not call 911 until about an hour and a half later. About a month after petitioner's arrest L.H. was removed from the custody of her mother, who had maintained until that point that petitioner was not involved in the rape. On June 22, 1998, L.H. was returned home and told her mother for the first time that petitioner had raped her. And on December 16, 1999, about 21 months after the rape, L.H. recorded her accusation in a videotaped interview with the Child Advocacy Center. The State charged petitioner with aggravated rape of a child under La. Stat. Ann. §14:42 (West 1997 and Supp. 1998) and sought the death penalty. At all times relevant to petitioner's case, the statute provided: "A. Aggravated rape is a rape committed ... where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: .     .     .     .     . "(4)When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense. .     .     .     .     . "D.Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. "(1)However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section: "(a)And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury." (Since petitioner was convicted and sentenced, the statute has been amended to include oral intercourse within the definition of aggravated rape and to increase the age of the victim from 12 to 13. See La. Stat. Ann. §14:42 (West Supp. 2007).) Aggravating circumstances are set forth in La. Code Crim. Proc. Ann., Art. 905.4 (West 1997 Supp.). In pertinent part and at all times relevant to petitioner's case, the provision stated: "A.The following shall be considered aggravating circumstances: "(1)The offender was engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, or simple robbery. .     .     .     .     . "(10)The victim was under the age of twelve years or sixty-five years of age or older." The trial began in August 2003. L.H. was then 13 years old. She testified that she "'woke up one morning and Patrick was on top of [her].'" She remembered petitioner bringing her "[a] cup of orange juice and pills chopped up in it" after the rape and overhearing him on the telephone saying she had become a "young lady." 2005-1981, pp.12, 15, 16 (La. 5/22/07), 957 So.2d 757, 767, 769, 770. L.H. acknowledged that she had accused two neighborhood boys but testified petitioner told her to say this and that it was untrue. Id., at 769. The jury having found petitioner guilty of aggravated rape, the penalty phase ensued. The State presented the testimony of S.L., who is the cousin and goddaughter of petitioner's ex-wife. S.L. testified that petitioner sexually abused her three times when she was eight years old and that the last time involved sexual intercourse. Id., at 772. She did not tell anyone until two years later and did not pursue legal action. The jury unanimously determined that petitioner should be sentenced to death. The Supreme Court of Louisiana affirmed. See id., at 779-789, 793; see also State v. Wilson, 96-1392, 96-2076 (La. 12/13/96), 685 So.2d 1063 (upholding the constitutionality of the death penalty for child rape). The court rejected petitioner's reliance on Coker v. Georgia, 433 U.S. 584 (1977), noting that, while Coker bars the use of the death penalty as punishment for the rape of an adult woman, it left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment. Because "'children are a class that need special protection,'" the state court reasoned, the rape of a child is unique in terms of the harm it inflicts upon the victim and our society. 957 So.2d, at 781. The court acknowledged that petitioner would be the first person executed for committing child rape since La. Stat. Ann. §14:42 was amended in 1995 and that Louisiana is in the minority of jurisdictions that authorize the death penalty for the crime of child rape. But following the approach of Roper v. Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002), it found significant not the "numerical counting of which [S]tates ... stand for or against a particular capital prosecution," but "the direction of change." 957 So. 2d, at 783 (emphasis deleted). Since 1993, the court explained, four more States--Oklahoma, South Carolina, Montana, and Georgia--had capitalized the crime of child rape and at least eight States had authorized capital punishment for other nonhomicide crimes. By its count, 14 of the then-38 States permitting capital punishment, plus the Federal Government, allowed the death penalty for nonhomicide crimes and 5 allowed the death penalty for the crime of child rape. See id., at 785-786. The state court next asked whether "child rapists rank among the worst offenders." Id., at 788. It noted the severity of the crime; that the execution of child rapists would serve the goals of deterrence and retribution; and that, unlike in Atkins and Roper, there were no characteristics of petitioner that tended to mitigate his moral culpability. Id., at 788-789. It concluded: "[S]hort of first-degree murder, we can think of no other non-homicide crime more deserving [of capital punishment]." Id., at 789. On this reasoning the Supreme Court of Louisiana rejected petitioner's argument that the death penalty for the rape of a child under 12 years is disproportionate and upheld the constitutionality of the statute. Chief Justice Calogero dissented. Coker, supra, and Eberheart v. Georgia, 433 U.S. 917 (1977), in his view, "set out a bright-line and easily administered rule" that the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim. 957 So.2d, at 794. We granted certiorari. See 552 U.S. ___ (2008). II The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes "all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive." Atkins, 536 U.S., at 311, n.7. The Court explained in Atkins, id., at 311, and Roper, supra, at 560, that the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367 (1910). Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that "currently prevail." Atkins, supra, at 311. The Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). This is because "[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting). Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also Part IV-B, infra. It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. For these reasons we have explained that capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.'" Roper, supra, at 568 (quoting Atkins, supra, at 319). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U.S. 153 (1976), the Court insists upon confining the instances in which the punishment can be imposed. Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. See Roper, supra, at 571-573; Atkins, supra, at 318, 320. The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. In Coker, 433 U.S. 584, for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult woman. See also Eberheart, supra (holding unconstitutional in light of Coker a sentence of death for the kidnaping and rape of an adult woman). And in Enmund v. Florida, 458 U.S. 782 (1982), the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison v. Arizona, 481 U.S. 137 (1987), the Court allowed the defendants' death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial. In these cases the Court has been guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." Roper, 543 U.S., at 563; see also Coker, supra, at 593-597 (plurality opinion) (finding that both legislatures and juries had firmly rejected the penalty of death for the rape of an adult woman); Enmund, supra, at 788 (looking to "historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made"). The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose. See id., at 797-801; Gregg, supra, at 182-183 (joint opinion of Stewart, Powell, and Stevens, JJ.); Coker, supra, at 597-600 (plurality opinion). Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments. III A The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. The history of the death penalty for the crime of rape is an instructive beginning point. In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult. See Coker, supra, at 593 (plurality opinion). Between 1930 and 1964, 455 people were executed for those crimes. See 5 Historical Statistics of the United States: Earliest Times to the Present, pp.5-262 to 5-263 (S. Carter etal. eds. 2006) (Table Ec343-357). To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964. See H. Frazier, Death Sentences in Missouri, 1803-2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations 143 (2006). In 1972, Furman invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman's aftermath only six States reenacted their capital rape provisions. Three States--Georgia, North Carolina, and Louisiana--did so with respect to all rape offenses. Three States--Florida, Mississippi, and Tennessee--did so with respect only to child rape. See Coker, supra, at 594-595 (plurality opinion). All six statutes were later invalidated under state or federal law. See Coker, supra (striking down Georgia's capital rape statute); Woodson v. North Carolina, 428 U.S. 280, 287, n.6, 301-305 (1976) (plurality opinion) (striking down North Carolina's mandatory death penalty statute); Roberts v. Louisiana, 428 U.S. 325 (1976) (striking down Louisiana's mandatory death penalty statute); Collins v. State, 550 S.W. 2d 643, 646 (Tenn. 1977) (striking down Tennessee's mandatory death penalty statute); Buford v. State, 403 So.2d 943, 951 (Fla. 1981) (holding unconstitutional the imposition of death for child rape); Leatherwood v. State, 548 So.2d 389, 402-403 (Miss. 1989) (striking down the death penalty for child rape on state-law grounds). Louisiana reintroduced the death penalty for rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp. 1996). Under the current statute, any anal, vaginal, or oral intercourse with a child under the age of 13 constitutes aggravated rape and is punishable by death. See La. Stat. Ann. §14:42 (West Supp. 2007). Mistake of age is not a defense, so the statute imposes strict liability in this regard. Five States have since followed Louisiana's lead: Georgia, see Ga. Code Ann. §16-6-1 (2007) (enacted 1999); Montana, see Mont. Code Ann. §45-5-503 (2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 2007 Supp.) (enacted 2006); South Carolina, see S.C. Code Ann. §16-3-655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted 2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007). Four of these States' statutes are more narrow than Louisiana's in that only offenders with a previous rape conviction are death eligible. See Mont. Code Ann. §45-5-503(3)(c); Okla. Stat., Tit. 10, §7115(K); S.C. Code Ann. §16-3-655(C)(1); Tex. Penal Code Ann. §12.42(c)(3). Georgia's statute makes child rape a capital offense only when aggravating circumstances are present, including but not limited to a prior conviction. See Ga. Code Ann. §17-10-30 (Supp. 2007). By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U.S.C.). Under 18 U.S.C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death. Petitioner claims the death penalty for child rape is not authorized in Georgia, pointing to a 1979 decision in which the Supreme Court of Georgia stated that "[s]tatutory rape is not a capital crime in Georgia." Presnell v. State, 243 Ga. 131, 132-133, 252 S.E. 2d 625, 626. But it appears Presnell was referring to the separate crime of statutory rape, which is not a capital offense in Georgia, see Ga. Code Ann. §26-2018 (1969); cf. Ga. Code. Ann. §16-6-3 (2007). The State's current capital rape statute, by contrast, is explicit that the rape of "[a] female who is less than ten years of age" is punishable "by death." Ga. Code Ann. §§16-6-1(a)(2), (b) (2007). Based on a recent statement by the Supreme Court of Georgia it must be assumed that this law is still in force: "Neither the United States Supreme Court, nor this Court, has yet addressed whether the death penalty is unconstitutionally disproportionate for the crime of raping a child." State v. Velazquez, 283 Ga. 206, 208, 657 S.E. 2d 838, 840 (2008). Respondent would include Florida among those States that permit the death penalty for child rape. The state statute does authorize, by its terms, the death penalty for "sexual battery upon ... a person less than 12 years of age." Fla. Stat. §794.011(2) (2007); see also §921.141(5) (2007). In 1981, however, the Supreme Court of Florida held the death penalty for child sexual assault to be unconstitutional. See Buford, supra. It acknowledged that Coker addressed only the constitutionality of the death penalty for rape of an adult woman, 403 So.2d, at 950, but held that "[t]he reasoning of the justices in Coker ... compels [the conclusion] that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment," id., at 951. Respondent points out that the state statute has not since been amended. Pursuant to Fla. Stat. §775.082(2) (2007), however, Florida state courts have understood Buford to bind their sentencing discretion in child rape cases. See, e.g., Gibson v. State, 721 So.2d 363, 367, and n. 2 (Fla. App. 1998) (deeming it irrelevant that "the Florida Legislature never changed the wording of the sexual battery statute"); Cooper v. State, 453 So.2d 67 (Fla. App. 1984) ("After Buford, death was no longer a possible penalty in Florida for sexual battery"); see also Fla. Stat. §775.082(2) ("In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court ... the court having jurisdiction over a person previously sentenced to death for a capital felony ... shall sentence such person to life imprisonment"). Definitive resolution of state-law issues is for the States' own courts, and there may be disagreement over the statistics. It is further true that some States, including States that have addressed the issue in just the last few years, have made child rape a capital offense. The summary recited here, however, does allow us to make certain comparisons with the data cited in the Atkins, Roper, and Enmund cases. When Atkins was decided in 2002, 30 States, including 12 noncapital jurisdictions, prohibited the death penalty for mentally retarded offenders; 20 permitted it. See 536 U.S., at 313-315. When Roper was decided in 2005, the numbers disclosed a similar division among the States: 30 States prohibited the death penalty for juveniles, 18 of which permitted the death penalty for other offenders; and 20 States authorized it. See 543 U.S., at 564. Both in Atkins and in Roper, we noted that the practice of executing mentally retarded and juvenile offenders was infrequent. Only five States had executed an offender known to have an IQ below 70 between 1989 and 2002, see Atkins, supra, at 316; and only three States had executed a juvenile offender between 1995 and 2005, see Roper, supra, at 564-565. The statistics in Enmund bear an even greater similarity to the instant case. There eight jurisdictions had authorized imposition of the death penalty solely for participation in a robbery during which an accomplice committed murder, see 458 U.S., at 789, and six defendants between 1954 and 1982 had been sentenced to death for felony murder where the defendant did not personally commit the homicidal assault, id., at 794. These facts, the Court concluded, "weigh[ed] on the side of rejecting capital punishment for the crime." Id., at 793. The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions--36 States plus the Federal Government--have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered. B At least one difference between this case and our Eighth Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some States have an "erroneous understanding of this Court's Eighth Amendment jurisprudence." Brief for Missouri Governor Matt Blunt etal. as Amici Curiae 10. They submit that the general propositions set out in Coker, contrasting murder and rape, have been interpreted in too expansive a way, leading some state legislatures to conclude that Coker applies to child rape when in fact its reasoning does not, or ought not, apply to that specific crime. This argument seems logical at first, but in the end it is unsound. In Coker, a four-Member plurality of the Court, plus Justice Brennan and Justice Marshall in concurrence, held that a sentence of death for the rape of a 16-year-old woman, who was a minor under Georgia law, see Ga. Code Ann. §74-104 (1973), yet was characterized by the Court as an adult, was disproportionate and excessive under the Eighth Amendment. See 433 U.S., at 593-600; see also id., at 600 (Brennan, J., concurring in judgment); ibid. (Marshall, J., concurring in judgment). (The Court did not explain why the 16-year-old victim qualified as an adult, but it may be of some significance that she was married, had a home of her own, and had given birth to a son three weeks prior to the rape. See Brief for Petitioner in Coker v. Georgia, O.T. 1976, No. 75-5444, pp.14-15.) The plurality noted that only one State had a valid statute authorizing the death penalty for adult rape and that "in the vast majority of cases, at least 9 out of 10, juries ha[d] not imposed the death sentence." Coker, 433 U.S., at 597; see also id., at 594 ("Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statutes--Georgia, North Carolina, and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts"). This "history and ... objective evidence of the country's present judgment concerning the acceptability of death as a penalty for rape of an adult woman," id., at 593, confirmed the Court's independent judgment that punishing adult rape by death was not proportional: "Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of...another person. The murderer kills; the rapist, if no more than that, does not....We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S., at 187, is an excessive penalty for the rapist who, as such, does not take human life." Id., at 598 (footnote omitted). Confined to this passage, Coker's analysis of the Eighth Amendment is susceptible of a reading that would prohibit making child rape a capital offense. In context, however, Coker's holding was narrower than some of its language read in isolation. The Coker plurality framed the question as whether, "with respect to rape of an adult woman," the death penalty is disproportionate punishment. Id., at 592. And it repeated the phrase "an adult woman" or "an adult female" in discussing the act of rape or the victim of rape eight times in its opinion. See Coker, supra. The distinction between adult and child rape was not merely rhetorical; it was central to the Court's reasoning. The opinion does not speak to the constitutionality of the death penalty for child rape, an issue not then before the Court. In discussing the legislative background, for example, the Court noted: "Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child and the rapist an adult. The Tennessee statute has since been invalidated because the death sentence was mandatory. The upshot is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the victim is a child....[This] obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman." Id., at 595-596 (citation and footnote omitted). Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators. The position of the state courts, furthermore, to which state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus. The state courts that have confronted the precise question before us have been uniform in concluding that Coker did not address the constitutionality of the death penalty for the crime of child rape. See, e.g., Wilson, 685 So.2d, at 1066 (upholding the constitutionality of the death penalty for rape of a child and noting that "[t]he plurality [in Coker] took great pains in referring only to the rape of adult women throughout their opinion" (emphasis deleted)); Upshaw v. State, 350 So.2d 1358, 1360 (Miss. 1977) ("In Coker the Court took great pains to limit its decision to the applicability of the death penalty for the rape of an adult woman.... As we view Coker the Court carefully refrained from deciding whether the death penalty for the rape of a female child under the age of twelve years is grossly disproportionate to the crime"). See also Simpson v. Owens, 207 Ariz. 261, 268, n.8, 85 P.3d 478, 485, n.8 (App. 2004) (addressing the denial of bail for sexual offenses against children and noting that "[a]lthough the death penalty was declared in a plurality opinion of the United States Supreme Court to be a disproportionate punishment for the rape of an adult woman ... the rape of a child remains a capital offense in some states"); People v. Hernandez, 30 Cal. 4th 835, 869, 69 P.3d 446, 466 (2003) (addressing the death penalty for conspiracy to commit murder and noting that "the constitutionality of laws imposing the death penalty for crimes not necessarily resulting in death is unresolved"). There is, to be sure, some contrary authority contained in various state-court opinions. But it is either dicta, see State v. Barnum, 921 So.2d 513, 526 (Fla. 2005) (addressing the retroactivity of Thompson v. State, 695 So.2d 691 (Fla. 1997)); State v. Coleman, 185 Mont. 299, 327, 605 P.2d 1000, 1017 (1979) (upholding the defendant's death sentence for aggravated kidnaping); State v. Gardner, 947 P.2d 630, 653 (Utah 1997) (addressing the constitutionality of the death penalty for prison assaults); equivocal in its conclusion, see People v. Huddleston, 212 Ill. 2d 107, 141, 816 N.E. 2d 322, 341-342 (2004) (citing law review articles for the proposition that the constitutionality of the death penalty for nonhomicide crimes "is the subject of debate"); or from a decision of a state intermediate court that has been superseded by a more specific statement of the law by the State's supreme court, compare, e.g., Parker v. State, 216 Ga. App. 649, 650, n.1, 455 S.E. 2d 360, 361, n. 1 (1995) (characterizing Coker as holding that the death penalty "is no longer permitted for rape where the victim is not killed"), with Velazquez, 283 Ga., at 208, 657 S.E. 2d, at 840 ("[T]he United States Supreme Court ... has yet [to] addres[s] whether the death penalty is unconstitutionally disproportionate for the crime of raping a child"). The Supreme Court of Florida's opinion in Buford could be read to support respondent's argument. But even there the state court recognized that "[t]he [Supreme] Court has yet to decide whether [Coker's rationale] holds true for the rape of a child" and made explicit that it was extending the reasoning but not the holding of Coker in striking down the death penalty for child rape. 403 So.2d, at 950, 951. The same is true of the Supreme Court of California's opinion in Hernandez, supra, at 867, 69 P.3d, at 464. We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime. C Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. See Atkins, 536 U.S., at 315 ("It is not so much the number of these States that is significant, but the consistency of the direction of change"); Roper, 543 U.S., at 565 ("Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded"). But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case. Respondent and its amici identify five States where, in their view, legislation authorizing capital punishment for child rape is pending. See Brief for Missouri Governor Matt Blunt etal. as Amici Curiae 2, 14. It is not our practice, nor is it sound, to find contemporary norms based upon state legislation that has been proposed but not yet enacted. There are compelling reasons not to do so here. Since the briefs were submitted by the parties, legislation in two of the five States has failed. See, e.g., S.195, 66th Gen. Assembly, 2d Reg. Sess. (Colo. 2008) (rejected by Senate Appropriations Committee on Apr. 11, 2008); S.2596, 2008 Leg., Reg. Sess. (Miss. 2008) (rejected by House Committee on Mar. 18, 2008). In Tennessee, the house bills were rejected almost a year ago, and the senate bills appear to have died in committee. See H.R. 601, 105th Gen. Assembly, 1st Reg. Sess. (2007) (taken off Subcommittee Calendar on Apr. 4, 2007); H.R. 662, ibid. (failed for lack of second on Mar. 21, 2007); H.R. 1099, ibid. (taken off notice for Judiciary Committee calendar on May 16, 2007); S.22, ibid. (referred to General Subcommittee of Senate Finance, Ways, and Means Committee on June 11, 2007); S.157, ibid. (referred to Senate Judiciary Committee on Feb. 7, 2007; action deferred until Jan. 2008); S.841, ibid. (referred to General Subcommittee of Senate Judiciary Committee on Mar. 27, 2007). In Alabama, the recent legislation is similar to a bill that failed in 2007. Compare H.R. 456, 2008 Leg., Reg. Sess. (2008), with H.R. 335, 2007 Leg., Reg. Sess. (2007). And in Missouri, the 2008 legislative session has ended, tabling the pending legislation. See Mo. Const., Art. III, §20(a). Aside from pending legislation, it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See Atkins, supra, at 313-315. Respondent argues the instant case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See Roper, supra, at 565. But in Roper, we emphasized that, though the pace of abolition was not as great as in Atkins, it was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See 543 U.S., at 566-567. When we decided Stanford v. Kentucky, 492 U.S. 361 (1989), 12 death penalty States already prohibited the execution of any juvenile under 18, and 15 prohibited the execution of any juvenile under 17. See Roper, supra, at 566-567 ("If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age gained wide recognition earlier"). Here, the total number of States to have made child rape a capital offense after Furman is six. This is not an indication of a trend or change in direction comparable to the one supported by data in Roper. The evidence here bears a closer resemblance to the evidence of state activity in Enmund, where we found a national consensus against the death penalty for vicarious felony murder despite eight jurisdictions having authorized the practice. See 458 U.S., at 789, 792. D There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society. See, e.g., id., at 794-795; Roper, supra, at 564-565; Atkins, supra, at 316; Cf. Coker, 433 U.S., at 596-597 (plurality opinion). These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape. Nine States--Florida, Georgia, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Tennessee, and Texas--have permitted capital punishment for adult or child rape for some length of time between the Court's 1972 decision in Furman and today. See supra, at 12; Coker, supra, at 595 (plurality opinion). Yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. See Historical Statistics of the United States, at 5-262 to 5-263 (Table Ec343-357). Cf. Thompson v. Oklahoma, 487 U.S. 815, 852-853 (1988) (O'Connor, J., concurring in judgment) (that "four decades have gone by since the last execution of a defendant who was younger than 16 at the time of the offense ... support[s] the inference of a national consensus opposing the death penalty for 15-year-olds"). Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; and petitioner and Richard Davis, who was convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007, see State v. Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, La.) (cited in Brief for Respondent 42, and n. 38), are the only two individuals now on death row in the United States for a nonhomicide offense. After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape. IV A As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. "[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Coker, supra, at 597 (plurality opinion); see also Roper, supra, at 563; Enmund, supra, at 797 ("[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty"). We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures. It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, "life may not be nearly so happy as it was" but it is not beyond repair. 433 U.S., at 598. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. See C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2-24, 111-112 (1990); Finkelhor & Browne, Assessing the Long-Term Impact of Child Sexual Abuse: A Review and Conceptualization in Handbook on Sexual Abuse of Children 55-60 (L. Walker ed. 1988). We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Trop, 356 U.S., at 99, 100 (plurality opinion). Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. See id., at 100. To date the Court has sought to define and implement this principle, for the most part, in cases involving capital murder. One approach has been to insist upon general rules that ensure consistency in determining who receives a death sentence. See California v. Brown, 479 U.S. 538, 541 (1987) ("[D]eath penalty statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion" (citing Gregg, 428 U.S. 153; Furman, 408 U.S. 238)); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (requiring a State to give narrow and precise definition to the aggravating factors that warrant its imposition). At the same time the Court has insisted, to ensure restraint and moderation in use of capital punishment, on judging the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, 428 U.S., at 304 (plurality opinion); Lockett v. Ohio, 438 U.S. 586, 604-605 (1978) (plurality opinion). The tension between general rules and case-specific circumstances has produced results not all together satisfactory. See Tuilaepa v. California, 512 U.S. 967, 973 (1994) ("The objectives of these two inquiries can be in some tension, at least when the inquiries occur at the same time"); Walton v. Arizona, 497 U.S. 639, 664-665 (1990) (Scalia, J., concurring in part and concurring in judgment) ("The latter requirement quite obviously destroys whatever rationality and predictability the former requirement was designed to achieve"). This has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. See id., at 667-673 (advocating that the Court adhere to the Furman line of cases and abandon the Woodson-Lockett line of cases). For others the failure to limit these same imprecisions by stricter enforcement of narrowing rules has raised doubts concerning the constitutionality of capital punishment itself. See Baze v. Rees, 553 U.S. ___, ___-___ (2008) (slip op., at 13-17) (Stevens, J., concurring in judgment); Furman, supra, at 310-314 (White, J., concurring); Callins v. Collins, 510 U.S. 1141, 1144-1145 (1994) (Blackmun, J., dissenting from denial of certiorari). Our response to this case law, which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed. See Gregg, supra, at 187, 184 (joint opinion of Stewart, Powell, and Stevens,JJ.) (because "death as a punishment is unique in its severity and irrevocability," capital punishment must be reserved for those crimes that are "so grievous an affront to humanity that the only adequate response may be the penalty of death" (citing in part Furman, 408 U.S., at 286-291 (Brennan, J., concurring); id., at 306 (Stewart, J., concurring))); see also Roper, 543 U.S., at 569 (the Eighth Amendment requires that "the death penalty is reserved for a narrow category of crimes and offenders"). Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken. We said in Coker of adult rape: "We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim.... Short of homicide, it is the 'ultimate violation of self.'... [But] [t]he murderer kills; the rapist, if no more than that, does not.... We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' is an excessive penalty for the rapist who, as such, does not take human life." 433 U.S., at 597-598 (plurality opinion) (citation omitted). The same distinction between homicide and other serious violent offenses against the individual informed the Court's analysis in Enmund, 458 U.S. 782, where the Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a "murderer" and a "robber," noting that while "robbery is a serious crime deserving serious punishment," it is not like death in its "severity and irrevocability." Id., at 797 (internal quotation marks omitted). Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," Coker, 433 U.S., at 598 (plurality opinion), they cannot be compared to murder in their "severity and irrevocability." Ibid. In reaching our conclusion we find significant the number of executions that would be allowed under respondent's approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period. See Inter-University Consortium for Political and Social Research, National Incident-Based Reporting System, 2005, Study No. 4720, http://www.icpsr.umich.edu (as visited June 12, 2008, and available in Clerk of Court's case file). Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. Cf. Brief for Louisiana Association of Criminal Defense Lawyers etal. as Amici Curiae 1-2, and n.2 (noting that there are now at least 70 capital rape indictments pending in Louisiana and estimating the actual number to be over 100). As a result of existing rules, see generally Godfrey, 446 U.S., at 428-433 (plurality opinion), only 2.2% of convicted first-degree murderers are sentenced to death, see Blume, Eisenberg, & Wells, Explaining Death Row's Population and Racial Composition, 1 J. of Empirical Legal Studies 165, 171 (2004). But under respondent's approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty. It might be said that narrowing aggravators could be used in this context, as with murder offenses, to ensure the death penalty's restrained application. We find it difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way. Even were we to forbid, say, the execution of first-time child rapists, see supra at 12, or require as an aggravating factor a finding that the perpetrator's instant rape offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against mitigating circumstances. In this context, which involves a crime that in many cases will overwhelm a decent person's judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be "freakis[h]," Furman, 408 U.S., at 310 (Stewart, J., concurring). We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. It is not a solution simply to apply to this context the aggravating factors developed for capital murder. The Court has said that a State may carry out its obligation to ensure individualized sentencing in capital murder cases by adopting sentencing processes that rely upon the jury to exercise wide discretion so long as there are narrowing factors that have some "'common-sense core of meaning ... that criminal juries should be capable of understanding.'" Tuilaepa, 512 U.S., at 975 (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976) (White, J., concurring in judgment)). The Court, accordingly, has upheld the constitutionality of aggravating factors ranging from whether the defendant was a "'cold-blooded, pitiless slayer,'" Arave v. Creech, 507 U.S. 463, 471-474 (1993), to whether the "perpetrator inflict[ed] mental anguish or physical abuse before the victim's death," Walton, 497 U.S., at 654, to whether the defendant "'would commit criminal acts of violence that would constitute a continuing threat to society,'" Jurek, supra, at 269-270, 274-276 (joint opinion of Stewart, Powell, and Stevens,JJ.). All of these standards have the potential to result in some inconsistency of application. As noted above, the resulting imprecision and the tension between evaluating the individual circumstances and consistency of treatment have been tolerated where the victim dies. It should not be introduced into our justice system, though, where death has not occurred. Our concerns are all the more pronounced where, as here, the death penalty for this crime has been most infrequent. See Part III-D, supra. We have developed a foundational jurisprudence in the case of capital murder to guide the States and juries in imposing the death penalty. Starting with Gregg, 428 U.S. 153, we have spent more than 32 years articulating limiting factors that channel the jury's discretion to avoid the death penalty's arbitrary imposition in the case of capital murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure. B Our decision is consistent with the justifications offered for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. See id., at 173, 183, 187 (joint opinion of Stewart, Powell, and Stevens,JJ.); see also Coker, 433 U.S., at 592 (plurality opinion) ("A punishment might fail the test on either ground"). As in Coker, here it cannot be said with any certainty that the death penalty for child rape serves no deterrent or retributive function. See id., at 593, n.4 (concluding that the death penalty for rape might serve "legitimate ends of punishment" but nevertheless is disproportionate to the crime). Cf. Gregg, supra, at 185-186 (joint opinion of Stewart, Powell, and Stevens,JJ.) ("[T]here is no convincing empirical evidence either supporting or refuting th[e] view [that the death penalty serves as a significantly greater deterrent than lesser penalties]. We may nevertheless assume safely that there are murderers ... for whom .. . the death penalty undoubtedly is a significant deterrent"); id., at 186 (the value of capital punishment, and its contribution to acceptable penological goals, typically is a "complex factual issue the resolution of which properly rests with the legislatures"). This argument does not overcome other objections, however. The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense. The goal of retribution, which reflects society's and the victim's interests in seeing that the offender is repaid for the hurt he caused, see Atkins, 536 U.S., at 319; Furman, supra, at 308 (Stewart, J., concurring), does not justify the harshness of the death penalty here. In measuring retribution, as well as other objectives of criminal law, it is appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution and the crime of child rape. See Part IV-A, supra; Coker, supra, at 597-598 (plurality opinion). There is an additional reason for our conclusion that imposing the death penalty for child rape would not further retributive purposes. In considering whether retribution is served, among other factors we have looked to whether capital punishment "has the potential ...to allow the community as a whole, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed." Panetti v. Quarterman, 551 U.S. ___, ____ (2007) (slip op., at 26). In considering the death penalty for nonhomicide offenses this inquiry necessarily also must include the question whether the death penalty balances the wrong to the victim. Cf. Roper, 543 U.S., at 571. It is not at all evident that the child rape victim's hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing determinations are in multiple proceedings. In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with law enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather. Cf. G. Goodman etal., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 50, 62, 72 (1992); Brief for National Association of Social Workers etal. as Amici Curiae 17-21. And in the end the State made L. H. a central figure in its decision to seek the death penalty, telling the jury in closing statements: "[L. H.] is asking you, asking you to set up a time and place when he dies." Tr. 121 (Aug. 26, 2003). Society's desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape. There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a "special risk of wrongful execution" in some child rape cases. Atkins, supra, at 321. See also Brief for National Association of Criminal Defense Lawyers etal. as Amici Curiae 5-17. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L.Rev. 33, 47 (2000) (there is "strong evidence that children, especially young children, are suggestible to a significant degree--even on abuse-related questions"); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children's True and False Reports of Body Touch, 12 Child Maltreatment 60, 61-66 (2007) (finding that 4- to 7-year-olds "were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview"). Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). Cf. Goodman, Testifying in Criminal Court, at 118. And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. These matters are subject to fabrication or exaggeration, or both. See Ceci and Friedman, supra; Quas, supra. Although capital punishment does bring retribution, and the legislature here has chosen to use it for this end, its judgment must be weighed, in deciding the constitutional question, against the special risks of unreliable testimony with respect to this crime. With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty's objectives. Underreporting is a common problem with respect to child sexual abuse. See Hanson, Resnick, Saunders, Kilpatrick, & Best, Factors Related to the Reporting of Childhood Rape, 23 Child Abuse & Neglect 559, 564 (1999) (finding that about 88% of female rape victims under the age of 18 did not disclose their abuse to authorities); Smith etal., Delay in Disclosure of Childhood Rape: Results From A National Survey, 24 Child Abuse & Neglect 273, 278-279 (2000) (finding that 72% of women raped as children disclosed their abuse to someone, but that only 12% of the victims reported the rape to authorities). Although we know little about what differentiates those who report from those who do not report, see Hanson, supra, at 561, one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member, see Goodman-Brown, Edelstein, Goodman, Jones, & Gordon, Why Children Tell: A Model of Children's Disclosure of Sexual Abuse, 27 Child Abuse & Neglect 525, 527-528 (2003); Smith, supra, at 283-284 (finding that, where there was a relationship between perpetrator and victim, the victim was likely to keep the abuse a secret for a longer period of time, perhaps because of a "greater sense of loyalty or emotional bond"); Hanson, supra, at 565-566, and Table 3 (finding that a "significantly greater proportion of reported than nonreported cases involved a stranger"); see also Ritchie, supra, at 60. The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim's family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting. See Brief for National Association of Social Workers etal. as Amici Curiae 11-13. As a result, punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John's L. Rev. 1119, 1159-1160 (2004). It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes. Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child. V Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court's own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. PATRICK KENNEDY, PETITIONER v. LOUISIANA on writ of certiorari to the supreme court of louisiana [June 25, 2008] Justice Alito, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its "independent judgment," that imposing the death penalty for child rape is inconsistent with "'the evolving standards of decency that mark the progress of a maturing society.'" Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent. I A I turn first to the Court's claim that there is "a national consensus" that it is never acceptable to impose the death penalty for the rape of a child. The Eighth Amendment's requirements, the Court writes, are "determined not by the standards that prevailed" when the Amendment was adopted but "by the norms that 'currently prevail.'" Ante, at 8 (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)). In assessing current norms, the Court relies primarily on the fact that only 6 of the 50 States now have statutes that permit the death penalty for this offense. But this statistic is a highly unreliable indicator of the views of state lawmakers and their constituents. As I will explain, dicta in this Court's decision in Coker v. Georgia, 433 U.S. 584 (1977), has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators--regardless of their own values and those of their constituents--from supporting the enactment of such legislation. As the Court correctly concludes, the holding in Coker was that the Eighth Amendment prohibits the death penalty for the rape of an "'adult woman,'" and thus Coker does not control our decision here. See ante, at 17. But the reasoning of the Justices in the majority had broader implications. Two Members of the Coker majority, Justices Brennan and Marshall, took the position that the death penalty is always unconstitutional. 433 U.S., at 600 (Brennan, J., concurring in judgment) and (Marshall, J., concurring in judgment). Four other Justices, who joined the controlling plurality opinion, suggested that the Georgia capital rape statute was unconstitutional for the simple reason that the impact of a rape, no matter how heinous, is not grievous enough to justify capital punishment. In the words of the plurality: "Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair." Id., at 598. The plurality summarized its position as follows: "We have the abiding conviction that the death penalty . . . is an excessive penalty for the rapist who, as such, does not take human life." Ibid. The implications of the Coker plurality opinion were plain. Justice Powell, who concurred in the judgment overturning the death sentence in the case at hand, did not join the plurality opinion because he understood it to draw "a bright line between murder and all rapes--regardless of the degree of brutality of the rape or the effect upon the victim." Id., at 603. If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same. Understandably, state courts have frequently read Coker in precisely this way. The Court is correct that state courts have generally understood the limited scope of the holding in Coker, ante, at 18, but lower courts and legislators also take into account--and I presume that this Court wishes them to continue to take into account--the Court's dicta. And that is just what happened in the wake of Coker. Four years after Coker, when Florida's capital child rape statute was challenged, the Florida Supreme Court, while correctly noting that this Court had not held that the Eighth Amendment bars the death penalty for child rape, concluded that "[t]he reasoning of the justices in Coker v. Georgia compels us to hold that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." Buford v. State, 403 So.2d 943, 951 (1981). Numerous other state courts have interpreted the Coker dicta similarly. See State v. Barnum, 921 So.2d 513, 526 (Fla. 2005) (citing Coker as holding that "'a sentence of death is grossly disproportionate and excessive punishment for the crime of rape,'" not merely the rape of an adult woman); People v. Huddleston, 212 Ill. 2d. 107, 141, 816 N.E. 2d 322, 341 (2004) (recognizing that "the constitutionality of state statutes that impose the death penalty for nonhomicide crimes is the subject of debate" after Coker); People v. Hernandez, 30 Cal. 4th 835, 867, 69 P.3d 446, 464-467 (2003) (Coker "rais[ed] serious doubts that the federal Constitution permitted the death penalty for any offense not requiring the actual taking of human life" because "[a]lthough the high court did not expressly hold [in Coker] that the Eighth Amendment prohibits capital punishment for all crimes not resulting in death, the plurality stressed that the crucial difference between rape and murder is that a rapist 'does not take human life'"); State v. Gardner, 947 P.2d 630, 653 (Utah 1997) ("The Coker holding leaves no room for the conclusion that any rape, even an 'inhuman' one involving torture and aggravated battery but not resulting in death, would constitutionally sustain imposition of the death penalty"); Parker v. State, 216 Ga. App. 649, n.1, 455 S.E. 2d 360, 361, n.1 (1995) (citing Coker for the proposition that the death penalty "is no longer permitted for rape where the victim is not killed"); Leatherwood v. State, 548 So.2d 389, 406 (Miss. 1989) (Robertson, J., concurring) ("There is as much chance of the Supreme Court sanctioning death as a penalty for any non-fatal rape as the proverbial snowball enjoys in the nether regions"); State v. Coleman, 185 Mont. 299, 327-328, 605 P.2d 1000, 1017 (1979) (stating that "[t]he decision of the Court in Coker v. Georgia is relevant only to crimes for which the penalty has been imposed which did not result in the loss of a life" (citations omitted)); Boyer v. State, 240 Ga. 170, 240 S.E. 2d 68 (1977) (per curiam) (stating that "[s]ince death to the victim did not result ... the death penalty for rape must be set aside"); see also 2005-1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757, 794 (case below) (Calogero, C.J., dissenting) (citing the comments of the Coker plurality and concluding that the Louisiana child rape law cannot pass constitutional muster).1 For the past three decades, these interpretations have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child. The enactment and implementation of any new state death penalty statute--and particularly a new type of statute such as one that specifically targets the rape of young children--imposes many costs. There is the burden of drafting an innovative law that must take into account this Court's exceedingly complex Eighth Amendment jurisprudence. Securing passage of controversial legislation may interfere in a variety of ways with the enactment of other bills on the legislative agenda. Once the statute is enacted, there is the burden of training and coordinating the efforts of those who must implement the new law. Capital prosecutions are qualitatively more difficult than noncapital prosecutions and impose special emotional burdens on all involved. When a capital sentence is imposed under the new law, there is the burden of keeping the prisoner on death row and the lengthy and costly project of defending the constitutionality of the statute on appeal and in collateral proceedings. And if the law is eventually overturned, there is the burden of new proceedings on remand. Moreover, conscientious state lawmakers, whatever their personal views about the morality of imposing the death penalty for child rape, may defer to this Court's dicta, either because they respect our authority and expertise in interpreting the Constitution or merely because they do not relish the prospect of being held to have violated the Constitution and contravened prevailing "standards of decency." Accordingly, the Coker dicta gave state legislators a strong incentive not to push for the enactment of new capital child-rape laws even though these legislators and their constituents may have believed that the laws would be appropriate and desirable. B The Court expresses doubt that the Coker dicta had this effect, but the skepticism is unwarranted. It would be quite remarkable if state legislators were not influenced by the considerations noted above. And although state legislatures typically do not create legislative materials like those produced by Congress, there is evidence that proposals to permit the imposition of the death penalty for child rape were opposed on the ground that enactment would be futile and costly. In Oklahoma, the opposition to the State's capital child-rape statute argued that Coker had already ruled the death penalty unconstitutional as applied to cases of rape. See Oklahoma Senate News Release, Senator Nichols Targets Child Predators with Death Penalty, Child Abuse Response Team, May 26, 2006, on line at http://www.oksenate.gov/news/press_releases/press_releases_ 2006/pr20060526d.htm (all Internet materials as visited June 23, 2008, and available in Clerk of Court's case file). Likewise, opponents of South Carolina's capital child-rape law contended that the statute would waste state resources because it would undoubtedly be held unconstitutional. See The State, Death Penalty Plan in Spotlight: Attorney General to Advise Senate Panel on Proposal for Repeat Child Rapists, Mar. 28, 2006 (quoting Laura Hudson, spokeswoman for the S.C. Victim Assistance Network, as stating that "'[w]e don't need to be wasting state money to have an appeal to the [United States] Supreme Court, knowing we are going to lose it'"). Representative Fletcher Smith of the South Carolina House of Representatives forecast that the bill would not meet constitutional standards because "death isn't involved." See Davenport, Emotion Drives Child Rape Death Penalty Debate in South Carolina, Associated Press, Apr. 4, 2006. In Texas, opponents of that State's capital child-rape law argued that Coker's reasoning doomed the proposal. House Research Organization Bill Analysis, Mar. 5, 2007 (stating that "the law would impose an excessive punishment and fail to pass the proportionality test established by the U.S. Supreme Court" and arguing that "Texas should not enact a law of questionable constitutionality simply because it is politically popular, especially given clues by the U.S. Supreme Court that death penalty laws that would be rarely imposed or that are not supported by a broad national consensus would be ruled unconstitutional"). C Because of the effect of the Coker dicta, the Court is plainly wrong in comparing the situation here to that in Atkins or Roper v. Simmons, 543 U.S. 551 (2005). See ante, at 14-15. Atkins concerned the constitutionality of imposing the death penalty on a mentally retarded defendant. Thirteen years earlier, in Penry v. Lynaugh, 492 U.S. 302 (1989), the Court had held that this was permitted by the Eighth Amendment, and therefore, during the time between Penry and Atkins, state legislators had reason to believe that this Court would follow its prior precedent and uphold statutes allowing such punishment. The situation in Roper was similar. Roper concerned a challenge to the constitutionality of imposing the death penalty on a defendant who had not reached the age of 18 at the time of the crime. Sixteen years earlier in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court had rejected a similar challenge, and therefore state lawmakers had cause to believe that laws allowing such punishment would be sustained. When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators' resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values. In that atmosphere, legislative inaction is more likely to evidence acquiescence. D If anything can be inferred from state legislative developments, the message is very different from the one that the Court perceives. In just the past few years, despite the shadow cast by the Coker dicta, five States have enacted targeted capital child-rape laws. See Ga. Code Ann. §16-6-1 (1999); Mont. Code Ann. §45-5-503 (1997); Okla. Stat., Tit. 10, §7115(K) (West Supp. 2008); S.C. Code Ann. §16-3-655(C)(1) (Supp. 2007); Tex. Penal Code Ann. §§22.021(a), 12.42(c)(3) (West Supp. 2007). If, as the Court seems to think, our society is "[e]volving" toward ever higher "standards of decency," ante, at 36, these enactments might represent the beginning of a new evolutionary line. Such a development would not be out of step with changes in our society's thinking since Coker was decided. During that time, reported instances of child abuse have increased dramatically;2 and there are many indications of growing alarm about the sexual abuse of children. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. §14071 (2000 ed. and Supp. V), which requires States receiving certain federal funds to establish registration systems for convicted sex offenders and to notify the public about persons convicted of the sexual abuse of minors. All 50 States have now enacted such statutes.3 In addition, at least 21 States and the District of Columbia now have statutes permitting the involuntary commitment of sexual predators,4 and at least 12 States have enacted residency restrictions for sex offenders.5 Seeking to counter the significance of the new capital child-rape laws enacted during the past two years, the Court points out that in recent months efforts to enact similar laws in five other States have stalled. Ante, at 21. These developments, however, all took place after our decision to grant certiorari in this case, see 552 U.S. ___ (2008), which gave state legislators reason to delay the enactment of new legislation until the constitutionality of such laws was clarified. And there is no evidence of which I am aware that these legislative initiatives failed because the proposed laws were viewed as inconsistent with our society's standards of decency. On the contrary, the available evidence suggests otherwise. For example, in Colorado, the Senate Appropriations Committee in April voted 6 to 4 against Senate Bill 195, reportedly because it "would have cost about $616,000 next year for trials, appeals, public defenders, and prison costs." Associated Press, Lawmakers Reject Death Penalty for Child Sex Abusers, Denver Post, Apr. 11, 2008. Likewise, in Tennessee, the capital child-rape bill was withdrawn in committee "because of the high associated costs." The bill's sponsor stated that "'[b]e-cause of the state's budget situation, we thought to withdraw that bill.... We'll revisit it next year to see if we can reduce the cost of the fiscal note.'" Green, Small Victory in Big Fight for Tougher Sex Abuse Laws, The Leaf-Chronicle, May 8, 2008, p.1A. Thus, the failure to enact capital child-rape laws cannot be viewed as evidence of a moral consensus against such punishment. E Aside from its misleading tally of current state laws, the Court points to two additional "objective indicia" of a "national consensus," ante, at 11, but these arguments are patent makeweights. The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12-13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court. See 18 U.S.C. §§2241, 2242 (2000 ed. and Supp. V); United States Sentencing Commission, Report to Congress: Analysis of Penalties for Federal Rape Cases, p.10, Table 1. Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values. Finally, the Court argues that statistics about the number of executions in rape cases support its perception of a "national consensus," but here too the statistics do not support the Court's position. The Court notes that the last execution for the rape of a child occurred in 1964, ante, at 23, but the Court fails to mention that litigation regarding the constitutionality of the death penalty brought executions to a halt across the board in the late 1960's. In 1965 and 1966, there were a total of eight executions for all offenses, and from 1968 until 1977, the year when Coker was decided, there were no executions for any crimes.6 The Court also fails to mention that in Louisiana, since the state law was amended in 1995 to make child rape a capital offense, prosecutors have asked juries to return death verdicts in four cases. See State v. Dickerson, 01-1287 (La. App. 6/26/02), 822 So.2d 849 (2002); State v. LeBlanc, 01-1322 (La. App. 5/13/01), 788 So.2d 1255; 2005-1981 (La. Sup. Ct. 5/22/07), 957 So.2d 757; State v. Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, La.) (cited in Brief for Respondent 42, and n. 38). In two of those cases, Louisiana juries imposed the death penalty. See 2005-1981 (La. Sup. Ct. 5/22/07), 957 So.2d 757; Davis, supra. This 50% record is hardly evidence that juries share the Court's view that the death penalty for the rape of a young child is unacceptable under even the most aggravated circumstances.7 F In light of the points discussed above, I believe that the "objective indicia" of our society's "evolving standards of decency" can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as evidencing the "national consensus" that the Court perceives. State legislatures, for more than 30 years, have operated under the ominous shadow of the Coker dicta and thus have not been free to express their own understanding of our society's standards of decency. And in the months following our grant of certiorari in this case, state legislatures have had an additional reason to pause. Yet despite the inhibiting legal atmosphere that has prevailed since 1977, six States have recently enacted new, targeted child-rape laws. I do not suggest that six new state laws necessarily establish a "national consensus" or even that they are sure evidence of an ineluctable trend. In terms of the Court's metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today snuffs out the line in its incipient stage. II A The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's "own judgment" regarding "the acceptability of the death penalty." Ante, at 24. Although the Court has much to say on this issue, most of the Court's discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court's irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today's decision. In the next section of this opinion, I will attempt to weed out the arguments that are not germane to the Eighth Amendment inquiry, and in the final section, I will address what remains. B A major theme of the Court's opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim," ante, at 35, and may discourage the reporting of child rape, ante, at 34-35. These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court's policy arguments concern matters that legislators should--and presumably do--take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using "'the aegis of the Cruel and Unusual Punishment Clause' to cut off the normal democratic processes," Atkins v. Virginia, 536 U.S. 304, 323 (2002) (Rehnquist, C.J., dissenting), in turn quoting Gregg v. Georgia, 428 U.S. 153, 176 (1976), (joint opinion of Stewart, Powell, and Stevens,JJ.), but the Court forgets that warning here. The Court also contends that laws permitting the death penalty for the rape of a child create serious procedural problems. Specifically, the Court maintains that it is not feasible to channel the exercise of sentencing discretion in child-rape cases, ante, at 28-29, and that the unreliability of the testimony of child victims creates a danger that innocent defendants will be convicted and executed, ante, at 33-34. Neither of these contentions provides a basis for striking down all capital child-rape laws no matter how carefully and narrowly they are crafted. The Court's argument regarding the structuring of sentencing discretion is hard to comprehend. The Court finds it "difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way." Ante, at 28-29. Even assuming that the age of a child is not alone a sufficient factor for limiting sentencing discretion, the Court need only examine the child-rape laws recently enacted in Texas, Oklahoma, Montana, and South Carolina, all of which use a concrete factor to limit quite drastically the number of cases in which the death penalty may be imposed. In those States, a defendant convicted of the rape of a child may be sentenced to death only if the defendant has a prior conviction for a specified felony sex offense. See Mont. Code Ann. §45-5-503(3)(c) (2007) ("If the offender was previously convicted of [a felony sexual offense] . . . the offender shall be ... punished by death . . ."); Okla. Stat., Tit. 10, §7115(K) (West Supp. 2008) ("Notwithstanding any other provision of law, any parent or other person convicted of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age subsequent to a previous conviction for any offense of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age shall be punished by death"); S.C. Code Ann. §16-3-655(C)(1) (Supp. 2007) ("If the [defendant] has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for first degree criminal sexual conduct with a minor who is less than eleven years of age ... he must be punished by death or by imprisonment for life"); Tex. Penal Code Ann. §12.42(c)(3) (2007 Supp.); ("[A] defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 ... that the defendant has previously been finally convicted of [a felony sexual offense against a victim younger than fourteen years of age]"). Moreover, it takes little imagination to envision other limiting factors that a State could use to structure sentencing discretion in child rape cases. Some of these might be: whether the victim was kidnapped, whether the defendant inflicted severe physical injury on the victim, whether the victim was raped multiple times, whether the rapes occurred over a specified extended period, and whether there were multiple victims. The Court refers to limiting standards that are "indefinite and obscure," ante, at 30, but there is nothing indefinite or obscure about any of the above-listed aggravating factors. Indeed, they are far more definite and clear-cut than aggravating factors that we have found to be adequate in murder cases. See, e.g., Arave v. Creech, 507 U.S. 463, 471 (1993) (whether the defendant was a "'cold-blooded, pitiless slayer'"); Walton v. Arizona, 497 U.S. 639, 646 (1990) (whether the "'perpetrator inflict[ed] mental anguish or physical abuse before the victim's death'"); Jurek v. Texas, 428 U.S. 262, 269 (1976) (joint opinion of Stewart, Powell, and Stevens,JJ.) (whether the defendant "'would commit criminal acts of violence that would constitute a continuing threat to society'"). For these reasons, concerns about limiting sentencing discretion provide no support for the Court's blanket condemnation of all capital child-rape statutes. That sweeping holding is also not justified by the Court's concerns about the reliability of the testimony of child victims. First, the Eighth Amendment provides a poor vehicle for addressing problems regarding the admissibility or reliability of evidence, and problems presented by the testimony of child victims are not unique to capital cases. Second, concerns about the reliability of the testimony of child witnesses are not present in every child-rape case. In the case before us, for example, there was undisputed medical evidence that the victim was brutally raped, as well as strong independent evidence that petitioner was the perpetrator. Third, if the Court's evidentiary concerns have Eighth Amendment relevance, they could be addressed by allowing the death penalty in only those child-rape cases in which the independent evidence is sufficient to prove all the elements needed for conviction and imposition of a death sentence. There is precedent for requiring special corroboration in certain criminal cases. For example, some jurisdictions do not allow a conviction based on the uncorroborated testimony of an accomplice. See, e.g., Ala. Code 12-21-222 (1986); Alaska Stat. §12.45.020 (1984); Ark. Code Ann. §16-89-111(e)(1) (1977); Cal. Penal Code Ann. §1111 (West 1985); Ga. Code Ann. §24-4-8 (1995); Idaho Code §19-2117 (Lexis 1979); Minn. Stat. §634.04 (1983); Mont. Code Ann. §46-16-213 (1985); Nev. Rev. Stat. §175.291 (1985); N.D. Cent. Code Ann. §29-21-14 (1974); Okla. St., Tit. 22, §742 (West 1969); Ore. Rev. Stat. §136.440 (1984); S.D. Codified Laws §23A-22-8 (1979). A State wishing to permit the death penalty in child-rape cases could impose an analogous corroboration requirement. C After all the arguments noted above are put aside, what is left? What remaining grounds does the Court provide to justify its independent judgment that the death penalty for child rape is categorically unacceptable? I see two. 1 The first is the proposition that we should be "most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty." Ante, at 25 (emphasis added); see also ante, at 27, 30 (referring to expansion of the death penalty). But holding that the Eighth Amendment does not categorically prohibit the death penalty for the rape of a young child would not "extend" or "expand" the death penalty. Laws enacted by the state legislatures are presumptively constitutional, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens,JJ.) ("[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity"), and until today, this Court has not held that capital child rape laws are unconstitutional, see ante, at 17 (Coker "does not speak to the constitutionality of the death penalty for child rape, an issue not then before the Court"). Consequently, upholding the constitutionality of such a law would not "extend" or "expand" the death penalty; rather, it would confirm the status of presumptive constitutionality that such laws have enjoyed up to this point. And in any event, this Court has previously made it clear that "[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions." Harmelin v. Michigan, 501 U.S. 957, 990 (1991) (principal opinion); see also Gregg, supra, at 176 (joint opinion of Stewart, Powell, and Stevens,JJ.). 2 The Court's final--and, it appears, principal--justification for its holding is that murder, the only crime for which defendants have been executed since this Court's 1976 death penalty decisions,8 is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. See ante, at 27-28. But the Court makes little attempt to defend these conclusions. With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U.S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second? The Court's decision here stands in stark contrast to Atkins and Roper, in which the Court concluded that characteristics of the affected defendants--mental retardation in Atkins and youth in Roper--diminished their culpability. See Atkins, 536 U.S., at 305; Roper, 543 U.S., at 571. Nor is this case comparable to Enmund v. Florida, 458 U.S. 782 (1982), in which the Court held that the Eighth Amendment prohibits the death penalty where the defendant participated in a robbery during which a murder was committed but did not personally intend for lethal force to be used. I have no doubt that, under the prevailing standards of our society, robbery, the crime that the petitioner in Enmund intended to commit, does not evidence the same degree of moral depravity as the brutal rape of a young child. Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists--predators who seek out and inflict serious physical and emotional injury on defenseless young children--are the epitome of moral depravity. With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to "crimes against individual persons" and to exclude "offenses against the State," a category that the Court stretches--without explanation--to include "drug kingpin activity." Ante, at 26. But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court's acknowledgment that "[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child." Ante, at 24. As the Court aptly recognizes, "[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape." Ibid. The rape of any victim inflicts great injury, and "[s]ome victims are so grievously injured physically or psychologically that life is beyond repair." Coker, 433 U.S., at 603 (opinion of Powell, J.). "The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped." Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208-209 (2003). See also State v. Wilson, 96-1392, p.6 (La. Sup. Ct. 12/13/96),685 So.2d 1063, 1067; Broughton, "On Horror's Head Horrors Accumulate": A Reflective Comment on Capital Child Rape Legislation, 39 Duquesne L.Rev. 1, 38 (2000). Long-term studies show that sexual abuse is "grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate." C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990). It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered "seriously disturbed." A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists Beware! The Death Penalty and Louisiana's Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997). The deep problems that afflict child-rape victims often become society's problems as well. Commentators have noted correlations between childhood sexual abuse and later problems such as substance abuse, dangerous sexual behaviors or dysfunction, inability to relate to others on an interpersonal level, and psychiatric illness. Broughton, supra, at 38; Glazer, supra, at 89; Handbook on Sexual Abuse of Children 7 (L. Walker ed. 1988). Victims of child rape are nearly 5 times more likely than nonvictims to be arrested for sex crimes and nearly 30 times more likely to be arrested for prostitution. Ibid. The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to "decency," "moderation," "restraint," "full progress," and "moral judgment" are not enough. III In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable "objective indicia" of a "national consensus" in support of the Court's position; (4) sustaining the constitutionality of the state law before us would not "extend" or "expand" the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general. The party attacking the constitutionality of a state statute bears the "heavy burden" of establishing that the law is unconstitutional. Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens,JJ.). That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court. FOOTNOTESFootnote 1Commentators have expressed similar views. See Fleming, Louisiana's Newest Capital Crime: The Death Penalty for Child Rape, 89 J. Crim. L. & C. 717, 727 (1999) (the Coker Court drew a line between "crimes which result in loss of life, and crimes which do not"); Baily, Death is Different, Even on the Bayou: The Disproportionality of Crime, 55 Wash. & Lee L.Rev. 1335, 1357 (1998) (noting that "[m]any post-Coker cases interpreting the breadth of Coker's holding suggest that the Mississippi Supreme Court's narrow reading of Coker in Upshaw is a minority position"); Matura, When Will It Stop? The Use of the Death Penalty for Non-homicide Crimes, 24 J. Legis. 249, 255 (1998) (stating that the Coker Court did not "draw a distinction between the rape of an adult woman and the rape of a minor"); Garvey, "As the Gentle Rain from Heaven": Mercy in Capital Sentencing, 81 Cornell L.Rev. 989, 1009, n. 74 (1996) (stating that courts generally understand Coker to prohibit death sentences for crimes other than murder); Nanda, Recent Developments in the United States and Internationally Regarding Capital Punishment--An Appraisal, 67 St. John's L.Rev. 523, 532 (1993) (finding that Coker stands for the proposition that a death sentence is excessive when the victim is not killed); Ellis, Guilty but Mentally Ill and the Death Penalty: Punishment Full of Sound and Fury, Signifying Nothing, 43 Duke L.J. 87, 94 (1994) (referencing Coker to require capital offenses to be defined by unjustified human death); Dingerson, Reclaiming the Gavel: Making Sense out of the Death Penalty Debate in State Legislatures, 18 N.Y.U. Rev. L. & Soc. Change 873, 878 (1991) (stating that Coker "ruled that the imposition of the death penalty for crimes from which no death results violates the cruel and unusual punishment provision of the eighth amendment" and that "[n]o subsequent Supreme Court decision has challenged this precedent"). Footnote 2From 1976 to 1986, the number of reported cases of child sexual abuse grew from 6,000 to 132,000, an increase of 2,100%. A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69 (1995). By 1991, the number of cases totaled 432,000, an increase of another 227%. Ibid. In 1995, local child protection services agencies identified 126,000 children who were victims of either substantiated or indicated sexual abuse. Nearly 30% of those child victims were between the age of four and seven. Rape, Abuse & Incest National Network Statistics, online at http://www.rainn.org/get-information/ statistics/sexual-assault-victims. There were an estimated 90,000 substantiated cases of child sexual abuse in 2003. Crimes Against Children Research Center, Reports from the States to the National Child Abuse and Neglect Data System, available at www.unh.edu/ccrc/ sexual-abuse/Child%20Sexual%20Abuse.pdf. Footnote 3Ala. Code §§13A-11-200 to 13A-11-203, 1181 (1994); Alaska Stat §§1.56.840, 12.63.010-100, 18.65.087, 28.05.048, 33.30.035 (1994, 1995, and 1995 Cum. Supp.); Ariz. Rev. Stat. Ann. §§13-3821 to -3825 (1989 and Supp. 1995); Ark. Code Ann. §§12-12-901 to -909 (1995); Cal. Penal Code Ann. §§290 to 290.4 (West Supp. 1996); Colo. Rev. Stat. Ann. §18-3-412.5 (Supp. 1996); Conn. Gen. Stat. Ann. §§54-102a to 54-102r (Supp. 1995); Del. Code Ann. Tit. 11, §4120 (1995); Fla. Stat. Ann. §§775.13, 775.22 (1992 and Supp. 1994); Ga. Code Ann. §42-9-44.1 (1994); 1995 Haw. Sess. Laws No. 160 (enacted June 14, 1995); Idaho Code §§9-340(11)(f), 18-8301 to 18-8311 (Supp. 1995); Ill. Comp. Stat. Ann., ch. 730, §§150/1 to 150/10 (2002); Ind. Code §§5-2-12-1 to 5-2-12-13 (West Supp. 1995); 1995 Iowa Legis. Serv. 146 (enacted May 3, 1995); Kan. Stat. Ann. §§22-4901 to 22-4910 (1995); Ky. Rev. Stat. Ann. §§17.500 to 17.540 (West Supp. 1994); La. Stat. Ann. §§15:540 to 15:549 (West Supp. 1995); Me. Rev. Stat. Ann., Tit. 34-A, §§11001 to 11004 (West Supp. 1995); 1995 Md. Laws p.142 (enacted May 9, 1995); Mass. Gen. Laws Ann., ch. 6, §178D; 1994 Mich. Pub. Acts p.295 (enacted July 13, 1994); Minn. Stat. §243.166 (1992 and Supp. 1995); Miss. Code Ann. §§45-33-1 to 45-33-19 (Supp. 1995); Mo. Rev. Stat. §§566.600 to 566.625 (Supp. 1996); Mont. Code Ann. §§46-23-501 to 46-23-507 (1994); Neb. Rev. Stat. §§4001 to 4014; Nev. Rev. Stat. §§207.080, 207.151 to 207.157 (1992 and Supp. 1995); N.H. Rev. Stat. Ann. §§632-A:11 to 632-A:19 (Supp. 1995); N.J. Stat. Ann. §§2c:7-1 to 2c:7-11 (1995); N.M. Stat. Ann. §§29-11A-1 to 29-11A-8 (Supp. 1995); N.Y. Correct. Law Ann. §§168 to 168-V (West Supp. 1996); N.C. Gen. Stat. Ann. §§14-208.5-10 (Lexis Supp. 1995); N.D. Cent. Code §12.1-32-15 (Lexis Supp. 1995); Ohio Rev. Code Ann. §§2950.01-.08 (Baldwin 1997); Okla. Stat., Tit. 57, §§582-584 (2003 Supp.); Ore. Rev. Stat. §§181.507 to 181.519 (1993); 1995 Pa. Laws p.24 (enacted Oct. 24, 1995); R.I. Gen. Laws §11-37-16 (1994); S.C. Code Ann. §23-3-430; S.D. Codified Laws §§22-22-30 to 22-22-41 (Supp. 1995) Tenn. Code Ann. §§40-39-101 to 40-39-108 (2003); Tex. Rev. Civ. Stat. Ann., Art. 6252-13c.1 (Vernon Supp. 1996); Utah Code Ann. §§53-5-212.5, 77-27-21.5 (Lexis Supp. 1995); Vt. Stat. Ann., Tit. 13, §5402; Va. Code Ann. §§19.2-298.1 to 19.2-390.1 (Lexis 1995); Wash. Rev. Code §§4.24.550, 9A.44.130, 9A.44.140, 10.01.200, 70.48.470, 72.09.330 (1992 and Supp. 1996); W.Va. Code §§61-8F-1 to 61-8F-8 (Lexis Supp. 1995); Wis. Stat. §175.45 (Supp. 1995); Wyo. Stat. Ann. §§7-19-301 to 7-19-306 (1995). Footnote 4Those States are Arizona, California, Connecticut, the District of Columbia, Florida, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, North Dakota, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin. See Ariz. Rev. Stat. §§36-3701 to 36-3713 (West 2003 and Supp. 2007); Cal. Welf. & Inst. Code Ann. §§6600 to 6609.3 (West 1998 and Supp. 2008); Conn. Gen. Stat. §17a-566 (1998); D.C. Code §§22-3803 to 22-3811 (2001); Fla. Stat. §§394.910 to 394.931 (West 2002 and Supp. 2005); Ill. Comp. Stat., ch. 725, §§207/1 to 207/99 (2002); Iowa Code §§229A.1-.16 (Supp. 2005); Kan. Stat. Ann. §59-29a02 (2004 and Supp. 2005); Ky. Rev. Stat. Ann. §202A.051 (West ___); Mass. Gen. Laws, ch. 123A (1989); Minn. Stat. §253B.02 (1992); Mo. Ann. Stat. §§632.480 to 632.513 (West 2000 and Supp. 2006); Neb. Rev. Stat. §§83-174 to 83-174.05 (2007); N.J. Stat. Ann. §§30:4-27.24 to 30:4-27.38 (West Supp. 2004); N.D. Cent. Code Ann. §25-03.3 (Lexis 2002); Ore. Rev. Stat. §426.005 (1998); Pa. Stat. Ann., Tit. 42, §§9791 to 9799.9 (2007); S.C. Code Ann. §§44-48-10 to 44-48-170 (2002 and Supp. 2007); Tex. Health & Safety Code Ann. §§841.001 to 841.147 (West 2003); Va. Code Ann. §§37.2-900 to 37.2-920 (2006 and Supp. 2007); Wash. Rev. Code §71.09.010 (West 1992 and Supp. 2002); Wis. Stat. §980.01-13 (2005). Footnote 5See Ala. Code §15-20-26 (Supp. 2000) (restricts sex offenders from residing or accepting employment within 2,000 feet of school or child-care facility); Ark. Code Ann. §5-14-128 (Supp. 2007) (unlawful for level three or four sex offenders to reside within 2,000 feet of school or daycare center); Cal. Penal Code Ann. §3003 (West Supp. 2008) (parolees may not live within 35 miles of victim or witnesses, and certain sex offenders on parole may not live within a quarter mile from a primary school); Fla. Stat. §947.1405(7)(a)(2) (2001) (released sex offender with victim under 18 prohibited from living within 1,000 feet of a school, daycare center, park, playground, or other place where children regularly congregate); Ga. Code Ann. §42-1-13 (Supp. 2007) (sex offenders required to register shall not reside within 1,000 feet of any childcare facility, school, or area where minors congregate); Ill. Comp. Stat., ch. 720, §5/11-9.3(b-5) (Supp. 2008) (child sex offenders prohibited from knowingly residing within 500 feet of schools); Ky. Rev. Stat. Ann. §17.495 (West 2000) (registered sex offenders on supervised release shall not reside within 1,000 feet of school or childcare facility); La. Rev. Stat. Ann. §14:91.1 (West Supp. 2004) (sexually violent predators shall not reside within 1,000 feet of schools unless permission is given by school superintendent); Ohio Rev. Code Ann. §2950.031 (Lexis 2003) (sex offenders prohibited from residing within 1,000 feet of school); Okla. Stat., Tit. 57, §590 (West 2003) (prohibits sex offenders from residing within 2,000 feet of schools or educational institutions); Ore. Rev. Stat. §§144.642, 144.643 (1999) (incorporates general prohibition on supervised sex offenders living near places where children reside); Tenn. Code Ann. §40-39-111 (2006) (repealed by Acts 2004, ch. 921, §4, effective Aug. 1, 2004) (sex offenders prohibited from establishing residence within 1,000 feet of school, childcare facility, or victim). Footnote 6Department of Justice, Bureau of Justice Statistics, online at http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm; see also Death Penalty Information Center, Executions in the U.S. 1608-2002: The ESPY File Executions by Date (2007), online at http://www.death penaltyinfo.org/ESPYyear.pdf. Footnote 7Of course, the other five capital child rape statutes are too recent for any individual to have been sentenced to death under them. Footnote 8Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

liberal

public_entity

criminal_procedure

1981-174-01

United States Supreme Court UNITED STATES v. VALENZUELA-BERNAL(1982) No. 81-450 Argued: April 20, 1982Decided: July 2, 1982 Respondent was indicted in Federal District Court for transporting one Romero-Morales in violation of 8 U.S.C. 1324(a)(2), which prohibits the knowing transportation of an alien illegally in the United States who last entered the country within three years prior to the date of the transportation. Two other illegal aliens - who, with Romero-Morales, were passengers in the car being driven by respondent and were apprehended with respondent - were deported after an Assistant United States Attorney concluded that they possessed no evidence material to respondent's prosecution. Romero-Morales was detained to provide a nonhearsay basis for establishing that respondent had violated 1324(a)(2). The District Court denied respondent's motion to dismiss the indictment on the asserted ground that the deportation of the other passengers deprived him of the opportunity to interview them to determine whether they could aid in his defense and thus violated his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process for obtaining witnesses. Following a bench trial respondent was convicted, but the Court of Appeals reversed, holding that although a constitutional violation occurs only when "the alien's testimony could conceivably benefit the defendant," the "conceivable benefit" test was satisfied - without requiring the defendant to explain what beneficial evidence would have been provided by the alien - whenever, as here, the deported alien was an eyewitness to the crime. Held: Respondent failed to establish a violation of the Fifth or Sixth Amendment. Pp. 863-874. (a) In cases like this, the Executive Branch's responsibility faithfully to execute Congress' immigration policy of prompt deportation of illegal aliens justifies deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. In addition to satisfying such policy, the prompt deportation of such witnesses is justified by practical considerations, including the financial and physical burdens imposed upon the Government in detaining alien eyewitnesses. Pp. 863-866. (b) Respondent cannot establish a violation of the Sixth Amendment, which guarantees a criminal defendant the right to compulsory process [458 U.S. 858, 859] for obtaining witnesses "in his favor," merely by showing that deportation of the aliens deprived him of their testimony. He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense. Cf. Washington v. Texas, 388 U.S. 14 . While a relaxation of the specificity required in showing materiality may be supported by the fact that, because the witnesses were deported, neither respondent nor his attorney had an opportunity to interview the witnesses to determine what favorable information they possessed, this does not afford a basis for wholly dispensing with a showing of materiality. Cf. Roviaro v. United States, 353 U.S. 53 . Moreover, respondent was present throughout the commission of the crime, and no one knew better than he what the deported witnesses said in his presence that might bear upon whether he knew that Romero-Morales was an illegal alien who had entered the country within the past three years. Pp. 867-871. (c) At least the same materiality requirement obtains with respect to a due process claim. In order to establish a denial of due process, the acts complained of must be of such quality as necessarily prevents a fair trial. Such an absence of fairness is not made out by the Government's deportation of the witnesses here unless there is some explanation of how their testimony would have been favorable and material. P. 872. (d) Sanctions against the Government are warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. In this case, respondent made no effort to explain what material, favorable evidence the deported aliens would have provided for his defense. Pp. 872-874. 647 F.2d 72, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., post, p. 874, and O'CONNOR, J., post, p. 875, filed opinions concurring in the judgment. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 879. Carter G. Phillips argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Frey. Eugene G. Iredale argued the cause for respondent. With him on the brief were John J. Cleary and Craig E. Weinerman. [458 U.S. 858, 860] JUSTICE REHNQUIST delivered the opinion of the Court. Respondent, a citizen of Mexico, was indicted in the United States District Court for the Southern District of California for transporting one Romero-Morales in violation of 8 U.S.C. 1324(a)(2). That section generally prohibits the knowing transportation of an alien illegally in the United States who last entered the country within three years prior to the date of the transportation. 1 Respondent was found guilty after a bench trial, but his conviction was overturned by the United States Court of Appeals for the Ninth Circuit. That court held that the action of the Government in deporting two aliens other than Romero-Morales violated respondent's right under the Sixth Amendment to the United States Constitution to compulsory process, and his right under the Fifth Amendment to due process of law. We granted certiorari in order to review the Court of Appeals' application of these constitutional provisions to this case, 454 U.S. 963 (1981), 2 and we now reverse. I Respondent entered the United States illegally on March 23, 1980, and was taken by smugglers to a house in Escondido, Cal. Six days later, in exchange for his not having to pay the smugglers for bringing him across the border, respondent agreed to drive himself and five other passengers to Los Angeles. When the car which respondent was driving [458 U.S. 858, 861] approached the Border Patrol checkpoint at Temecula, agents noticed the five passengers lying down inside the car and motioned to respondent to stop. Respondent accelerated through the checkpoint and was chased at high speed for approximately one mile before stopping the car and fleeing on foot along with the five passengers. Three of the passengers and respondent were apprehended by the Border Patrol agents. Following their arrest, respondent and the other passengers were interviewed by criminal investigators. Respondent admitted his illegal entry into the country and explained his reason for not stopping at the checkpoint: "I was bringing the people [and] I already knew I had had it - too late - it was done." App. 27. The three passengers also admitted that they were illegally in the country and each identified respondent as the driver of the car. Id., at 66. An Assistant United States Attorney concluded that the passengers possessed no evidence material to the prosecution or defense of respondent for transporting illegal aliens, and two of the passengers were deported to Mexico. The third, Enrique Romero-Morales, was detained to provide a nonhearsay basis for establishing that respondent had transported an illegal alien in violation of 8 U.S.C. 1324(a)(2). Respondent moved in the District Court to dismiss the indictment, claiming that the Government's deportation of the two passengers other than Romero-Morales violated his Fifth Amendment right to due process of law and his Sixth Amendment right to compulsory process for obtaining favorable witnesses. He claimed that the deportation had deprived him of the opportunity to interview the two remaining passengers to determine whether they could aid in his defense. Although he had been in their presence throughout the allegedly criminal activity, respondent made no attempt to explain how the deported passengers could assist him in proving that he did not know that Romero-Morales was an illegal alien who had last entered the United States within the preceding three years. [458 U.S. 858, 862] At least one evidentiary hearing was held on respondent's motion, at which Romero-Morales testified that he had not spoken to respondent during the entire time that they were together. At the same hearing the Government offered, without obtaining agreement by respondent, to stipulate that none of the passengers in the car told respondent that they were in the United States illegally. The District Court denied respondent's motion and, following a bench trial on stipulated evidence, found respondent guilty as charged. 3 The Court of Appeals reversed the conviction. The court relied upon the rule, first stated in United States v. Mendez-Rodriguez, 450 F.2d 1 (CA9 1971), that the Government violates the Fifth and Sixth Amendments when it deports alien witnesses before defense counsel has an opportunity to interview them. 647 F.2d 72, 73-75 (1981). Although it stated that a constitutional violation occurs only when "the alien's testimony could conceivably benefit the defendant," id., at 74, the court's application of the "conceivable benefit" test demonstrated that the test will be satisfied whenever the deported aliens were eyewitnesses to the crime. 4 Respondent's [458 U.S. 858, 863] failure to explain what beneficial evidence would have been provided by the two passengers was thus inapposite, for "the deported aliens were eyewitnesses to, and active participants in, the crime charged, thus establishing a strong possibility that they could have provided material and relevant information concerning the events constituting the crime." Id., at 75. Accordingly, the Court of Appeals held that respondent's motion to dismiss the indictment should have been granted by the District Court. II We think that the decision of the Court of Appeals in this case, and some of the additional arguments made in support of it by respondent, misapprehend the varied nature of the duties assigned to the Executive Branch by Congress. The Constitution imposes on the President the duty to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, 3. One of the duties of the Executive Branch, and a vitally important one, is that of apprehending and obtaining the conviction of those who have violated criminal statutes of the United States. The prosecution of respondent is of course one example of the Executive's effort to discharge that responsibility. [458 U.S. 858, 864] But the Government is charged with a dual responsibility when confronted with incidents such as that which resulted in the apprehension of respondent. One or more of the persons in the car may have violated the criminal laws enacted by Congress; but some or all of the persons in the car may also be subject to deportation as provided by Congress. The Government may, therefore, find itself confronted with the obligation of prosecuting persons in the position of respondent on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted. The power to regulate immigration - an attribute of sovereignty essential to the preservation of any nation - has been entrusted by the Constitution to the political branches of the Federal Government. See Mathews v. Diaz, 426 U.S. 67, 81 (1976). "The Court without exception has sustained Congress' `plenary power to make rules for the admission of aliens.'" Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967). In exercising this power, Congress has adopted a policy of apprehending illegal aliens at or near the border and deporting them promptly. Border Patrol agents are authorized by statute to make warrantless arrests of aliens suspected of "attempting to enter the United States in violation of . . . law," 8 U.S.C. 1357(a)(2), and are directed to examine them without "unnecessary delay" to determine whether "there is prima facie evidence establishing" their attempted illegal entry. 8 CFR 287.3 (1982). Aliens against whom such evidence exists may be granted immediate voluntary departure from the country. See 8 U.S.C. 1252(b); 8 CFR 242.5(a)(2)(i) (1982). Thus, Congress has determined that prompt deportation, such as occurred in this case, constitutes the most effective method for curbing the enormous flow of illegal aliens across our southern border. 5 [458 U.S. 858, 865] In addition to satisfying immigration policy, the prompt deportation of alien witnesses who are determined by the Government to possess no material evidence relevant to a criminal trial is justified by several practical considerations. During fiscal year 1979, almost one-half of the more than 11,000 inmates incarcerated in federal facilities in the Southern District of California were material witnesses who had neither been charged with nor convicted of a criminal offense. App. 18. The average period of detention for such witnesses exceeded 5 days, and many were detained for more than 20 days. Id., at 20. The resulting overcrowded conditions forced the Government to house many detainees in federal facilities located outside the Southern District of California or in state-operated jails. Id., at 21-22; Brief for United States 19. Thus, the detention of alien eyewitnesses imposes substantial financial and physical burdens upon the Government, not to mention the human cost to potential witnesses who are incarcerated though charged with no crime. In addition, the rule adopted by the Court of Appeals significantly constrains the Government's prosecutorial discretion. As explained by the United States: "Because of budget limitations and the unavailability of adequate detention facilities, it is simply impossible as a practical matter to prosecute many cases involving the transportation or harboring of large numbers of illegal aliens, where all the aliens must be incarcerated for a substantial period of time to avoid dismissal of the charges, even though the prosecution's case may be overwhelming. As a consequence, many valid and appropriate prosecutions are foregone." Id., at 21-22. It simply will not do, therefore, to minimize the Government's dilemma in cases like this with statements such as "[t]he prosecution may not deny access to a witness by hiding [458 U.S. 858, 866] him out. See Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979) (police detective concealed location of witness)." Brief for Respondent 35. Congress' immigration policy and the practical considerations discussed above demonstrate that the Government had good reason to deport respondent's passengers once it concluded that they possessed no evidence relevant to the prosecution or the defense of respondent's criminal charge. No onus, in the sense of "hiding out" or "concealing" witnesses, attached to the Government by reason of its discharge of the obligations imposed upon it by Congress; its exercise of these manifold responsibilities is not to be judged by standards which might be appropriate if the Government's only responsibility were to prosecute criminal offenses. III Viewing the Government's conduct in this light, we turn to the evaluation of the Court of Appeals' "conceivable benefit" test. There seems to us to be little doubt that this test is a virtual "per se" rule which requires little if any showing on the part of the accused defendant that the testimony of the absent witness would have been either favorable or material. As we said with respect to a similar test - phrased in terms of information "that might affect the jury's verdict" - for determining when a prosecutor must disclose information to a criminal defendant: "If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice." United States v. Agurs, 427 U.S. 97, 109 (1976). So it is with the "conceivable benefit" test. Given the vagaries of a typical jury trial, it would be a bold statement indeed to say that the testimony of any missing witness could not have "conceivably benefited" the defense. To us, the [458 U.S. 858, 867] number of situations which will satisfy this test is limited only by the imaginations of judges or defense counsel. 6 A The only recent decision of this Court dealing with the right to compulsory process guaranteed by the Sixth Amendment suggests that more than the mere absence of testimony is necessary to establish a violation of the right. See Washington v. Texas, 388 U.S. 14 (1967). Indeed, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him "compulsory process for obtaining witnesses in his favor." U.S. Const., Amdt. 6 (emphasis added). In Washington, this Court found a violation of this Clause of the Sixth Amendment when the defendant was arbitrarily deprived of "testimony [that] would have been relevant and material, and . . . vital to the defense." 388 U.S., at 16 (emphasis added). This language suggests that respondent cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation of the passengers deprived him of their testimony. He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense. 7 When we turn from Washington to other cases in what might loosely be called the area of constitutionally guaranteed access to evidence, we find Washington's intimation of a [458 U.S. 858, 868] materiality requirement more than borne out. Brady v. Maryland, 373 U.S. 83 (1963), held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., at 87. This materiality requirement was emphasized in Moore v. Illinois, 408 U.S. 786 (1972), where we stated that a defendant will prevail upon a Brady claim "where the evidence is favorable to the accused and is material either to guilt or to punishment." Id., at 794. And in United States v. Agurs, supra, we noted that "[a] fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." Id., at 104. We further explained: "The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. . . . This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." Id., at 112-113 (footnotes omitted). Similarly, when the Government has been responsible for delay resulting in a loss of evidence to the accused, we have recognized a constitutional violation only when loss of the evidence prejudiced the defense. In United States v. Marion, 404 U.S. 307 (1971), for example, the Court held that pre-indictment delay claims were governed by the Due Process Clause of the Fifth Amendment, not by the speedy-trial guarantee of the Sixth Amendment. Elaborating on the nature of the guarantee provided by the Due Process Clause [458 U.S. 858, 869] in such cases, the Court emphasized the requirement of materiality: "Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them." Id., at 325. Five Terms later, in United States v. Lovasco, 431 U.S. 783 (1977), we summarized this aspect of Marion: "Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id., at 790. The same "prejudice" requirement has been applied to cases of postindictment delay. In Barker v. Wingo, 407 U.S. 514 (1972), the Court set forth several factors to be considered in determining whether an accused has been denied his Sixth Amendment right to a speedy trial by the Government's pretrial delay. One of the four factors identified by the Court, and a factor more fully discussed in United States v. MacDonald, 435 U.S. 850, 858 -859 (1978), was whether there had been any "prejudice to the defendant from the delay." Id., at 858. Although the Court recognized that prejudice may take the form of "`oppressive pretrial incarceration'" or "`anxiety and concern of the accused,'" the "`most serious'" consideration, analogous to considerations in this case, was impairment of the ability to mount a defense. See ibid. (quoting Barker v. Wingo, supra, at 532). Thus, other interests protected by the Sixth Amendment look to the degree of prejudice incurred by a defendant as a result of governmental action or inaction. [458 U.S. 858, 870] The principal difference between these cases in related areas of the law and the present case is that respondent simply had no access to the witnesses who were deported after he was criminally charged. Respondent contends that requiring him to show materiality is unreasonable in light of the fact that neither he nor his attorney was afforded an opportunity to interview the deported witnesses to determine what favorable information they possessed. But while this difference may well support a relaxation of the specificity required in showing materiality, we do not think that it affords the basis for wholly dispensing with such a showing. The closest case in point is Roviaro v. United States, 353 U.S. 53 (1957). While Roviaro was not decided on the basis of constitutional claims, its subsequent affirmation in McCray v. Illinois, 386 U.S. 300 (1967), where both due process and confrontation claims were considered by the Court, suggests that Roviaro would not have been decided differently if those claims had actually been called to the Court's attention. Roviaro deals with the obligation of the prosecution to disclose to the defendant the name of an informer-eyewitness, and was cast in terms of the traditional governmental privilege to refuse disclosure of such an identity. The Roviaro Court held that the informer's identity had to be disclosed, but only after it concluded that the informer's testimony would be highly relevant: "This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that [the informer] denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated [458 U.S. 858, 871] demands by the accused for his disclosure." 353 U.S., at 64 -65. "What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity," McCray v. Illinois, supra, at 311, despite the fact that criminal defendants otherwise have no access to such informers to determine what relevant information they possess. Roviaro supports the conclusion that while a defendant who has not had an opportunity to interview a witness may face a difficult task in making a showing of materiality, the task is not an impossible one. In such circumstances it is of course not possible to make any avowal of how a witness may testify. But the events to which a witness might testify, and the relevance of those events to the crime charged, may well demonstrate either the presence or absence of the required materiality. In addition, it should be remembered that respondent was present throughout the commission of this crime. No one knows better than he what the deported witnesses actually said to him, or in his presence, that might bear upon whether he knew that Romero-Morales was an illegal alien who had entered the country within the past three years. And, in light of the actual charge made in the indictment, it was only the status of Romero-Morales, of course, remained fully available for examination by the defendant and his attorney. We thus conclude that the respondent can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony of the deported witnesses. 8 [458 U.S. 858, 872] B Having borrowed much of our reasoning with respect to the Compulsory Process Clause of the Sixth Amendment from cases involving the Due Process Clause of the Fifth Amendment, we have little difficulty holding that at least the same materiality requirement obtains with respect to a due process claim. Due process guarantees that a criminal defendant will be treated with "that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236 (1941). In another setting, we recognized that Jencks Act violations, wherein the Government withholds evidence required by statute to be disclosed, rise to the level of due process violations only when they so infect the fairness of the trial as to make it "more a spectacle or trial by ordeal than a disciplined contest." United States v. Augenblick, 393 U.S. 348, 356 (1969) (citations omitted). Such an absence of fairness is not made out by the Government's deportation of the witnesses in this case unless there is some explanation of how their testimony would have been favorable and material. See United States v. Lovasco, 431 U.S. 783 (1977); United States v. Marion, 404 U.S. 307 (1971). IV To summarize, the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. The mere fact that the Government [458 U.S. 858, 873] deports such witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence lost would be both material and favorable to the defense. Because prompt deportation deprives the defendant of an opportunity to interview the witnesses to determine precisely what favorable evidence they possess, however, the defendant cannot be expected to render a detailed description of their lost testimony. But this does not, as the Court of Appeals concluded, relieve the defendant of the duty to make some showing of materiality. Sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses. In some cases such a showing may be based upon agreed facts, and will be in the nature of a legal argument rather than a submission of additional facts. In other cases the criminal defendant may advance additional facts, either consistent with facts already known to the court or accompanied by a reasonable explanation for their inconsistency with such facts, with a view to persuading the court that the testimony of a deported witness would have been material and favorable to his defense. 9 Because in the latter situation the explanation of materiality is testimonial in nature, and constitutes evidence of the prejudice incurred as a result of the deportation, it should be verified by oath or affirmation of either the defendant or his attorney. See Fed. Rule Evid. 603; Fed. Rule Crim. Proc. 47. As in other cases concerning the loss of material evidence, sanctions will be warranted for deportation of alien witnesses [458 U.S. 858, 874] only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. See Giglio v. United States, 405 U.S. 150, 154 (1972). In making such a determination, courts should afford some leeway for the fact that the defendant necessarily proffers a description of the material evidence rather than the evidence itself. Because determinations of materiality are often best made in light of all of the evidence adduced at trial, judges may wish to defer ruling on motions until after the presentation of evidence. 10 In this case the respondent made no effort to explain what material, favorable evidence the deported passengers would have provided for his defense. Under the principles set forth today, he therefore failed to establish a violation of the Fifth or Sixth Amendment, and the District Court did not err in denying his motion to dismiss the indictment. Accordingly, the judgment of the Court of Appeals is Reversed. Footnotes [Footnote 1 Section 1324(a)(2) applies to "[a]ny person" who "transports, or moves, or attempts to transport or move," "any alien," "knowing that [the alien] is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior" to the transportation or attempted transportation with which the person is charged. [Footnote 2 Other Courts of Appeals have adopted slight variations of the position held by the Court of Appeals for the Ninth Circuit. See, e. g., United States v. Armijo-Martinez, 669 F.2d 1131 (CA6 1982); United States v. Rose, 669 F.2d 23 (CA1 1982); United States v. Avila-Dominguez, 610 F.2d 1266 (CA5 1980); United States v. Calzada, 579 F.2d 1358 (CA7 1978). [Footnote 3 The joint appendix contains excerpts of transcribed testimony from a hearing on June 2, 1980, at which the District Court heard arguments of counsel and the testimony of Romero-Morales. At the conclusion of this testimony, counsel for respondent proposed the highly unusual step of calling the Assistant United States Attorney as a witness. App. 45. The attorney testified at further proceedings held on June 12, 1980, and was interrogated, inter alia, about his understanding of various decisions of the Court of Appeals for the Ninth Circuit and about the Government's litigating strategy in these cases. Id., at 63-64. This procedure seems to us highly unusual, if not bizarre; ordinarily the litigating strategies of the United States Attorney are no more the subject of permissible inquiry by his opponent than would be the litigating strategies of the Public Defender by his opponent. [Footnote 4 As the Court of Appeals explained: "The conceivable benefit in Mendez-Rodriguez stemmed from the fact that the deported aliens were eyewitnesses to, and active participants in, the crime charged, so that there was a strong possibility that they could have provided material and relevant evidence concerning the events constituting the crime. Conversely, where a missing deported alien was not an [458 U.S. 858, 863] eyewitness to the offense, we have been unwilling to assume that the alien's testimony could conceivably benefit the defendant." 647 F.2d, at 74 (citation and footnotes omitted). As described by the Court of Appeals, the "conceivable benefit" test "impose[s] no requirement of government misconduct or negligence before dismissal of an indictment is warranted. Nor is a defendant required to show specific prejudice caused by the unavailability of the alien eyewitnesses." Ibid. (citation omitted). Other Courts of Appeals have recognized the Ninth Circuit rule as requiring no showing of prejudice, United States v. Calzada, 579 F.2d, at 1362, and as permitting dismissal of the indictment even when the "`record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful' to the defendants." United States v. Avila-Dominguez, 610 F.2d, at 1269-1270 (quoting United States v. Mendez-Rodriguez, 450 F.2d 1, 6 (CA9 1971) (Kilkenny, J., dissenting)). [Footnote 5 As evidence of the effectiveness of Congress' policy and of the colossal problem presented by illegal entries from Mexico, the United States notes that approximately one million illegal aliens were detained by Border Patrol [458 U.S. 858, 865] officials during each of the three years preceding 1981. Brief for United States 19; see U.S. Department of Justice, Internal Audit Report, U.S. Border Patrol Management of the Mexican Border 1, 6 (Jan. 1981). [Footnote 6 See n. 4, supra. [Footnote 7 That the Sixth Amendment does not guarantee criminal defendants the right to compel the attendance of any and all witnesses is reflected in the Federal Rules of Criminal Procedure. Rule 17(b) requires the Government to subpoena witnesses on behalf of indigent defendants, but only "upon a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense." See also Isaacs v. United States, 159 U.S. 487, 489 (1895); Crumpton v. United States, 138 U.S. 361, 364 -365 (1891). [Footnote 8 Respondent's knowledge of the truth distinguishes this case from United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807), a case cited by respondent in support of his argument that it is unreasonable to require him to explain the relevance of the missing testimony. In Burr, Chief Justice Marshall found it unreasonable to require Aaron Burr to explain the relevancy of General Wilkinson's letter to President Jefferson, [458 U.S. 858, 872] upon which the President's allegations of treason were based, precisely because Burr had never read the letter and was unaware of its contents. In this case, respondent observed the passengers, heard their comments, and is fully aware of the ways in which they influenced his knowledge about the status of Romero-Morales. [Footnote 9 In adopting this standard, we express no opinion on the showing which a criminal defendant must make in order to obtain compulsory process for securing the attendance at his criminal trial of witnesses within the United States. [Footnote 10 The counsel of United States v. Agurs, 427 U.S. 97, 112 -113 (1976), is helpful here: "[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." JUSTICE BLACKMUN, concurring in the judgment. I concur in the judgment of the Court essentially for the reasons set forth by Judge Roney, in writing for a panel of the former Fifth Circuit, in United States v. Avila-Dominguez, 610 F.2d 1266, 1269-1270, cert. denied sub nom. Perez v. United States, 449 U.S. 887 (1980). At least a "plausible theory" of how the testimony of the deported witnesses would be helpful to the defense must be offered. None was advanced here; therefore, the motion to dismiss the indictment was properly denied by the District Court. [458 U.S. 858, 875] JUSTICE O'CONNOR, concurring in the judgment. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967). In short, the right to compulsory process is essential to a fair trial. Today's decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a "plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense." Ante, at 873. A preferable approach would be to accommodate both the Government's interest in prompt deportation of illegal aliens and the defendant's need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation. I One cannot discount the importance of the Federal Government's role in the regulation of immigration. 1 As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, [458 U.S. 858, 876] have decided that prompt deportation is the appropriate response to the tremendous influx of illegal aliens. Ante, at 864. The Court is also correct that the Federal Government has legitimate reasons for reducing the number of illegal aliens detained for possible use as material witnesses. Particularly because most of the detained aliens are never called to testify, we should be careful not to permit either needless human suffering or excessive burdens on the Federal Government. Under these circumstances, courts should be especially circumspect about interfering with congressional judgments. Nevertheless, the constitutional obligation of the Executive to "take Care that the Laws be faithfully executed," U.S. Const., Art. II, 3, including the immigration laws, does not lessen the importance of affording the defendant the "fundamental fairness" inherent in due process, Lisenba v. California, 314 U.S. 219, 236 (1941). Moreover, the defendant's express right in the Sixth Amendment to compel the testimony of "witnesses in his favor," requires recognition of the importance, both to the individual defendant and to the integrity of the criminal justice system, of permitting the defendant the opportunity to interview eyewitnesses to the alleged crime. A governmental policy of deliberately putting potential defense witnesses beyond the reach of compulsory process is not easily reconciled with the spirit of the Compulsory Process Clause. II The Court's solution to this apparent conflict between the Executive's duty to enforce the immigration laws and its duty not to impair the defendant's rights to due process and compulsory process is to permit the Government to deport potential alien witnesses, and to put the burden on the defendant of making a plausible showing that the deported aliens would have provided material and relevant evidence. The Court's approach thus permits the Government to make [458 U.S. 858, 877] a practice of deporting alien witnesses immediately, taking only the risk that the defendant will be able to show that the deported witnesses, whom the defendant's counsel never will be able to interview, would have provided useful testimony. In effect, to the extent that the Government has conflicting obligations, the defendant is selected to carry the burden of their resolution. As the Court poses the issue today, the only alternatives are either to (1) permit routine deportation of witnesses and require the defendant to make some showing of prejudice, or (2) delay deportation so that defense counsel can interview the potential witnesses, and provide for automatic dismissal of the indictment if the witnesses are deported. There is, however, another alternative that would avoid unduly burdening either the Government or the defendant. The Court could require that deportation of potential alien witnesses be delayed for a very brief interval to allow defense counsel, as well as the Government, to interview them. That approach is somewhat similar to the Ninth Circuit's practice, originally described in United States v. Mendez-Rodriguez, 450 F.2d 1 (1971). Under the holding in that case, illegal alien witnesses were held in custody for a short period, an average of five days, following the appointment of counsel. During that time, defense counsel had the opportunity to interview the witnesses and determine whether any of them might provide material and relevant evidence. Following the interviews, a Federal Magistrate held a hearing to determine whether any of the witnesses could provide material evidence, and ordered deportation of those aliens who could not provide such testimony. On those occasions when the Government nevertheless deported potential witnesses before the materiality hearing was held, the District Court determined whether the deported witnesses could have been of some "conceivable benefit" to the defendant. If the defendant met that standard, the court dismissed the indictment. [458 U.S. 858, 878] The principal difficulty with the Ninth Circuit's approach was, as the Court notes, ante, at 866-867, that it required virtually no evidence that the deported witness' testimony would have been material to the defense. Under the Ninth Circuit's formulation, the Government's deportation of an alien witness resulted in virtually an automatic dismissal of the indictment. In adopting a standard requiring brief detention of potential alien witnesses, the Court need not take so extreme a position. In United States v. Avila-Dominguez, 610 F.2d 1266 (1980), for example, the Fifth Circuit followed the Ninth Circuit's rationale in concluding that a defendant's constitutional rights are violated if the Government deports an alien witness before the defendant has had an opportunity to interview him. The court nevertheless affirmed the defendant's conviction because he could not offer a "plausible theory" explaining how the witness' testimony would have been helpful to the defense. Id., at 1270. The court thus adopted a more stringent test than the Ninth Circuit's "conceivable benefit" test. The standard I propose is an amalgam of the approaches used by the Fifth and Ninth Circuits. 2 As a matter of course, the deportable aliens who are potential witnesses should be detained for a very brief period to afford Government [458 U.S. 858, 879] and defense counsel the opportunity to interview them. If, within that period, the defendant requests that certain aliens not be deported, a federal magistrate should hold a hearing to determine whether deportation of any of the witnesses should be deferred until after trial. As evidenced by the statistics provided by the respondent, similar procedures in the Ninth Circuit have produced very little litigation. See Brief for Respondent 30. Of course, the Government could be expected to abide by such a rule, but in the occasional event that it deports alien witnesses without affording the defendant any opportunity to interview them, the defendant should not be entitled to an automatic dismissal of the indictment; nor should the defendant be expected to prove prejudice - after all, the Government has deported his potential witnesses. Instead, I agree with the Court that sanctions should be available against the Government if the defendant sets forth some plausible theory explaining how the deported witnesses would have provided material evidence that was not simply cumulative of evidence readily available to the defendant. III In the case before us, the respondent made no plausible suggestion that the deported aliens possessed any material evidence that was not merely cumulative of other evidence. Under the standard I have proposed, the District Court properly denied the respondent's motion to dismiss the indictment. Accordingly, I concur in the judgment of the Court. [Footnote 1 Article I, 8, cl. 4, states that Congress shall have the power "To establish an uniform Rule of Naturalization." See Mathews v. Diaz, 426 U.S. 67, 81 (1976) ("For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government"); Galvan v. Press, 347 U.S. 522, 531 (1954) ("that the formulation of [immigration] policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government"). [Footnote 2 This Court has not hesitated to use its supervisory power over federal courts to set standards to ensure the fair administration of justice. For example, in McCarthy v. United States, 394 U.S. 459, 468 -472 (1969), this Court, under its supervisory power, held that when a district court does not comply fully with Federal Rule of Criminal Procedure 11 in accepting a guilty plea, the plea must be set aside and the case remanded for the defendant to enter a new plea. The Court expressly rejected the rule, adopted by some Circuits, of holding a hearing to determine whether the defendant had entered his plea voluntarily with an understanding of the charge. See also Marshall v. United States, 360 U.S. 310, 313 (1959) (using this Court's "supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts" in setting aside a criminal conviction because several jurors had read inadmissible news accounts of the defendant's past activities). JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Today's holding flaunts a transparent contradiction. On the one hand, the Court recognizes respondent's constitutional right, under the Compulsory Process Clause of the Sixth Amendment, to the production of all witnesses whose testimony would be relevant and material to his defense. Ante, at 867-869. But on the other hand, the Court holds [458 U.S. 858, 880] that the Government may deport illegal-alien eyewitnesses to respondent's alleged crime immediately upon their apprehension, before respondent or his attorney have had any opportunity to interview them - thus depriving respondent of the surest and most obvious means by which he could establish the materiality and relevance of such witnesses' testimony. Ante, at 872-873. Truly, the Court giveth, and the Court taketh away. But surely a criminal defendant has a constitutional right to interview eyewitnesses to his alleged crime before they are whisked out of the country by his prosecutor. The Court's decision today makes a mockery of that right. Accordingly, I dissent. The premise of the Court's holding is that "the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses," ante, at 872; this governmental power is conditioned only upon the Executive's "good-faith determination" that those witnesses possess "no evidence favorable to the defendant in a criminal prosecution," ibid. The Court sets up this asserted "responsibility" of the Executive Branch as a counterweight to its responsibility for "apprehending and obtaining the conviction of those who have violated criminal statutes of the United States." Ante, at 863. Thus the Court presents this case as involving a governmental "dilemma," ante, at 865, in which the Executive Branch is caught between the conflicting demands of its "dual responsibility," ante, at 864. This supposed "dilemma" is a pure figment of the Court's imagination, repudiated by our precedents and by common sense. The Executive Branch has many responsibilities, any of which may conflict with its duty to enforce the federal criminal law. For example, the Executive Branch has an obvious and imperative obligation to preserve the national security. But when the Executive Branch chooses to prosecute a violation of federal law, it incurs a constitutional responsibility manifestly superior to its other duties: namely, the responsibility [458 U.S. 858, 881] to ensure that the accused receives the due process of law. The Government simply cannot be heard to argue that the criminal defendant's rights may be infringed because of the Executive Branch's "other responsibilities": Given the vast and manifold character of those responsibilities, to accept such an argument would be to accede to the rapid evisceration of the constitutional rights of the accused. This point is hardly a novel one. In Jencks v. United States, 353 U.S. 657 (1957), we noted that "the protection of vital national interests may militate against public disclosure of documents in the Government's possession." Id., at 670. But at the same time we noticed: "[I]n criminal causes, `. . . the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. . . .'" Id., at 671, quoting United States v. Reynolds, 345 U.S. 1, 12 (1953). We also quoted with approval from the opinion of the Court of Appeals for the Second Circuit in United States v. Andolschek, 142 F.2d 503 (1944), in which Judge Learned Hand said: "While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents [458 U.S. 858, 882] may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully." Id., at 506. 1 The principle affirmed in these precedents is directly applicable to this case. Of course, the Government has a responsibility to execute our national immigration policy. But that responsibility does not conflict in the smallest degree with the Government's "duty to see that justice is done" to the criminal defendant whom it has chosen to prosecute. If the Government wishes to pursue criminal remedies against the accused, then its other "responsibilities" must yield before the rights to which an accused is constitutionally entitled. Of course, the Government's duty to enforce the immigration laws should not be deferred indefinitely. But no inordinate delay is necessary in cases such as the one before us. The Southern District of California long ago adopted a procedure to enforce the Mendez-Rodriguez doctrine announced by the Court of Appeals for the Ninth Circuit in 1971. 2 The Southern District's procedure represents a practical and sensitive accommodation between a criminal defendant's constitutional rights under the Compulsory Process Clause and the Government's policy of prompt deportation of illegal aliens. Under that procedure, illegal-alien eyewitnesses are [458 U.S. 858, 883] held in custody for a short period of time - about 10 days - after appointment of counsel for the criminal defendant. At the end of that period, the United States magistrate holds a material witness bail review hearing, pursuant to 18 U.S.C. 3149. In the intervening time, counsel for the defendant may interview the witnesses, and determine whether they can provide testimony material to the defense. At the hearing, both prosecution and defense are required to show the materiality of each of the detained witnesses, or they are released and deported. Brief for Respondent 6-7; Brief for United States 13-14, 18. If this traditional Southern District procedure had been adhered to in the present case, the Government would have clearly discharged its constitutional obligation to afford respondent an opportunity to develop evidence bearing upon the materiality of the testimony of the witnesses to his alleged offense. In contrast, the Court permits the Government to adopt a wholly unilateral procedure that deprives respondent and future criminal defendants of any such opportunity. The Court suggests that a criminal defendant should be able to "demonstrate either the presence or absence of the required materiality" even without having had an opportunity to interview the detained eyewitnesses. Ante, at 871. But this notion has been flatly rejected by our precedents. Roviaro v. United States, 353 U.S. 53 (1957), denied the Government's claimed privilege to withhold the identity of its informer, "John Doe," from the petitioner. 3 Roviaro, like respondent in the present case, was "present throughout the commission of this crime." Ante, at 871; see 353 U.S., at 64 ("So far as [Roviaro] knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was [458 U.S. 858, 884] indicted"). But the Court in Roviaro refused to say, as the Court does today, that a criminal defendant "can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony" that he seeks. Ante, at 871. Rather, the Court in Roviaro required disclosure simply because John Doe's testimony "might have been helpful to the defense." 353 U.S., at 63 -64 (emphasis added). "Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner's identity or the identity of the package [of heroin]. He was the only witness who might have testified to petitioner's possible lack of knowledge of the contents of the package that the `transported' . . . to John Doe's car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide." Id., at 64 (emphasis added). Like Doe in Roviaro, the illegal aliens deported by the Government in the present case "played a prominent part" in respondent's alleged offense - if, indeed, they did not help to set it up without the knowledge of respondent. And they, like Doe, might have testified to respondent's "possible lack of knowledge" respecting essential elements of the crime charged against him. 4 Under Roviaro, respondent, not the [458 U.S. 858, 885] Government, was entitled to decide whether or not the illegal-alien eyewitnesses in this case could give testimony material and relevant to the defense. I dissent. [Footnote 1 See United States v. Beekman, 155 F.2d 580, 583-584 (CA2 1946). See also United States v. Burr, 25 F. Cas. 187, 191 (No. 14,694) (CC Va. 1807) ("If this might be likened to a civil case, the law is express on the subject. It is that either party may require the other to produce books or writings in their possession or power, which contain evidence pertinent to the issue. . . . [I]f the order be disobeyed by the plaintiff, judgment as in the case of a nonsuit may be entered against him"); United States v. Nixon, 418 U.S. 683, 709 (1974) ("To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense"). [Footnote 2 See United States v. Mendez-Rodriguez, 450 F.2d 1 (CA9 1971). [Footnote 3 Roviaro represented an exercise of our supervisory jurisdiction. See McCray v. Illinois, 386 U.S. 300, 309 (1967). But as the Court concedes, ante, at 870, Roviaro would not have been decided differently if the Due Process and Confrontation Clause claims implicit in that case had been brought to the fore. [Footnote 4 In order to obtain a conviction under 8 U.S.C. 1324(a)(2), quoted ante, at 860, n. 1, the Government was required to show (1) that respondent transported an alien within the United States, (2) that the alien had not been lawfully admitted or was not lawfully entitled to enter, (3) that this was known to respondent, (4) that respondent knew that the alien's last entry was within three years, and (5) that respondent acted willfully in furtherance of the alien's violation of the law. United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (CA9 1976). Since the third and fourth [458 U.S. 858, 885] elements of this statutory requirement bear upon respondent's state of mind, it is plain that the illegal aliens whom respondent was transporting might very well have been able to testify to his lack of knowledge on these critical points. [458 U.S. 858, 886]

conservative

person

criminal_procedure